Prado v. Dumanis et al

Filing 20

ORDER: (1) Granting Motion to Proceed in Forma Pauperis; (2) Denying Motion for Preliminary Injunction; and (3) Dismissing Civil Action for Failure to State a Claim without Leave to Amend as Futile. Watch Commander of GBDF, or his designee, is direct ed to collect from Plaintiff's trust account the $350 filing fee owed in this case by garnishing monthly payments from his account in an amount equal to twenty percent (20%) of the preceding month's income and forwarding those pay ments to the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). Signed by Judge Roger T. Benitez on 12/19/2016.(cc: Watch Commander)(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSEPH A. PRADO,
Booking #16113441,

ORDER:

Plaintiff,

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Case No.: 3:16-cv-2309-BEN-KSC

vs.

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]

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BONNIE DUMANIS, et al.,
2) DENYING MOTION FOR
PRELIMINARY INJUNCTION
[ECF No. 4]

Defendants.

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AND

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3) DISMISSING CIVIL ACTION
FOR FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)

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Joseph A. Prado (“Plaintiff”), currently incarcerated at the George Bailey

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Detention Facility (“GBDF”) in San Diego, California, and proceeding pro se, has filed a

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civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has also filed a

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Motion for Preliminary Injunctive Relief (ECF No. 4), as well as Motion to Proceed In

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Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
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3:16-cv-2309-BEN-KSC

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I.

Motion to Proceed IFP

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All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d

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1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.

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See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.

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2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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monthly deposits in the account for the past six months, or (b) the average monthly

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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

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custody of the prisoner then collects subsequent payments, assessed at 20% of the

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preceding month’s income, in any month in which his account exceeds $10, and forwards

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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);

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In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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Bruce, 136 S. Ct. at 629.

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In support of his IFP Motion, Plaintiff has submitted a prison certificate authorized

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by a GBDF administrative lieutenant attesting to his trust account activity. See ECF No. 2

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at 4; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These

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statements show Plaintiff has had no monthly deposits to his account, has carried no

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balance over the six month period preceding the filing of his Complaint, and that his

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current available balance is zero. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no

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event shall a prisoner be prohibited from bringing a civil action or appealing a civil action

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or criminal judgment for the reason that the prisoner has no assets and no means by

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which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at

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850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of

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a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds

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available to him when payment is ordered.”).
Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),

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declines to “exact” any initial filing fee because his trust account statement shows he “has

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no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Watch Commander at

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GBDF to instead collect the entire $350 balance of the filing fees required by 28 U.S.C.

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§ 1914 and forward them to the Clerk of the Court pursuant to the installment payment

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provisions set forth in 28 U.S.C. § 1915(b)(1).

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II.

Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

Standard of Review

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answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
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the targets of frivolous or malicious suits need not bear the expense of responding.’”

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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

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Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

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relief [is] ... a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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B.

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Plaintiff’s Complaint names San Diego District Attorney Bonnie Dumanis, San

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Diego County Sheriff William Gore, San Diego Police Chief Shelly Zimmerman, U.S.

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District Court Judge Huff, U.S. Magistrate Judge Gallo, and San Diego Superior Court

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Judges Groch and Danielson as Defendants. (ECF No. 1 at 1-2.) He then claims his Fifth

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Amendment right to “due process” was violated when he was falsely arrested by a “man

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… name[d] Price” who “notoriously entered the Hall of Justice” claimed to be his

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assigned probation officer, and then “managed to place a warrant out for [his] arrest.” (Id.

Plaintiff’s Allegations

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at 2-4.) Plaintiff also references a false affidavit, perjured testimony, and an internal

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affairs complaint filed on March 9, 2016. (Id. at 5, 7.) He seeks $350,000 in general and

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$700,000 in punitive damages. (Id. at 7.)

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Plaintiff has also filed multiple supplemental documents comprised of San Diego

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Sheriff’s Department Complaint Forms and on Inmate Stationary requesting various

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forms of relief including a “private settlement,” (ECF No. 7), copies of all “grievances

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and incident reports at SDCJ (San Diego County Jail)” (ECF No. 9), a request to hold

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Judges Huff, Gallo, and Bencivengo “in contempt” for failing to grant him relief in two

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other civil actions he filed in this Court (ECF No. 11),2 and three documents addressed to

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the Clerk and U.S. Attorney Laura Duffy requesting that they “press charges” against

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GBDF and SDCJ personnel based on his treatment in, and transfers between, both

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facilities (ECF Nos. 13, 17, 19).

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C.

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“Section 1983 creates a private right of action against individuals who, acting

42 U.S.C. § 1983

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under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

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Indeed, Plaintiff has filed several actions in the Southern District of California over the
course of the last year. Two were petitions for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254: Prado v. Williams, et al., S.D. Cal. Civil Case No. 3:16-cv-2203-CAB-BGS and
Prado v. GBDF, et al., S.D. Cal. Civil Case No. 3:16-cv-2414-JAH-BGS. Both of those
petitions have been dismissed. Three others, in addition to this case, were filed pursuant to
42 U.S.C. § 1983: Prado v. Gore, et al., S.D. Cal. Civil Case No. 3:16-cv-1436-GPCWVG; Prado v. Staff at GBDF, et al., S.D. Cal. Civil Case No. 3:16-cv-2269-AJB-MDD;
and Prado v. Gallo, et al., S.D. Cal. Civil Case No. 3:16-cv-2638-BAS-BLM. Both Prado
v. Gore, 3:16-cv-1436-GPC-WVG (originally assigned to Judge Huff), and Prado v. Staff
at GBDF, 3:16-cv-2269-AJB-MDD, have also been dismissed. Only this case, Prado v.
Dumanis, et al., 3:16-cv-2309-BEN-KSC, and Prado v. Gallo, et al., 3:16-cv-2638-BASBLM, remain open.
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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

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deprivation of a right secured by the Constitution and laws of the United States, and (2)

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that the deprivation was committed by a person acting under color of state law.” Tsao v.

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Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
Criminal Proceedings – Law Enforcement Defendants

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D.

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First, to the extent Plaintiff seeks damages against law enforcement officials

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Dumanis, Zimmerman, and Gore, and claims they falsely arrested and prosecuted him for

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“sales” pursuant to Cal. Penal Code § 11352, in San Diego Superior Court Case No.

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SCD255529, and in violation of his Fifth Amendment right to “due process” (ECF No. 1

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at 3-4), he may not pursue those claims in a civil rights action pursuant to 42 U.S.C.

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§ 1983, without first showing those convictions have already been invalidated. See Heck

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v. Humphry, 512 U.S. 477, 486-87 (1994).

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In Heck, the Supreme Court held:
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
§ 1983.
Id. at 486-87.
“Suits challenging the validity of the prisoner’s continued incarceration lie within

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‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state

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prisoner who is making a constitutional challenge to the conditions of his prison life, but

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not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir.

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2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of

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habeas corpus is “explicitly and historically designed” to provide a state prisoner with the
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“exclusive” means to “attack the validity of his confinement” in federal court).
Because Plaintiff seeks damages based on an arrest and conviction he alleges was

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“false” and based on perjured testimony (ECF No. 1 at 4-5), his claims amount to an

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attack on the validity of his underlying criminal conviction, and may not proceed

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pursuant to § 1983, unless his conviction has already been invalidated. Heck, 512 U.S. at

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486-87; Ramirez, 334 F.3d at 855-56 (“Absent such a showing, ‘[e]ven a prisoner who

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has fully exhausted available state remedies has no cause of action under § 1983.’”),

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quoting Heck, 512 U.S. at 489. While Plaintiff identifies no specific acts of misconduct

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taken by the District Attorney, County Sheriff, or Chief of Police individually during the

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course of his criminal proceedings, except to point to the filing of “false affidavits” and

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“perjury,” (ECF No. 5), see Iqbal, 556 U.S. at 677 (noting that “[a]bsent vicarious

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liability, each Government official, his or her title notwithstanding, is only liable for his

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or her own misconduct”), the Court will presume he intends to sue these law enforcement

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officials for acting together to wrongfully convict him in violation of “due process.”

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(ECF No. 1 at 3).

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However, such claims “necessarily imply the invalidity” of his conviction and

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continued incarceration. Heck, 512 U.S. at 487. In other words, were Plaintiff to succeed

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in showing that Defendants Dumanis, Zimmerman, and Gore conspired to wrongfully

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convict him based on false evidence or perjured testimony, an award of damages would

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“necessarily imply the invalidity” of his conviction and/or sentence. Id., 512 U.S. at 487;

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see also Guerrero v. Gates, 442 F.3d 697, 701 (9th Cir. 2006) (finding § 1983 action

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stemming from allegations of wrongful arrest, malicious prosecution, and a general

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conspiracy of “bad behavior” among officials in connection with the plaintiff’s arrest,

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prosecution, and incarceration were barred by Heck). His conviction has not been

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invalidated, and therefore this lawsuit is not the proper subject for a § 1983 action.

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E.

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Second, to the extent Plaintiff seeks damages against Judges Huff, Gallo,

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Judicial and Prosecutorial Immunity

Danielson, and Groch for either presiding over his criminal proceedings or denying him
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relief in his federal civil actions, his claims are legally frivolous, for “[j]udges are

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absolutely immune from damage liability for acts performed in their official capacities.”

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Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). As a prosecutor, Bonnie

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Dumanis is likewise entitled to absolute prosecutorial immunity. Id. at 1076 (“Where a

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prosecutor acts as an advocate ‘in initiating a prosecution and in presenting the state’s

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case,’ absolute immunity applies.” (quoting Imbler v. Pachtman, 424 U.S. 409, 431

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(1976))); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 912 (9th Cir. 2012)

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(“Prosecutors performing their official prosecutorial functions are entitled to absolute

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immunity against constitutional torts.”).
Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state a

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claim upon which § 1983 relief may be granted, and that it therefore must be

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DISMISSED pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at

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1126-27; Wilhelm, 680 F.3d at 1121.

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III.

Motion for Preliminary Injunction

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Finally, Plaintiff has filed a Motion requesting “Emergency” Preliminary

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Injunctive Relief (ECF No. 4). The basis for Plaintiff’s Motion is far from clear, but he

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again refers to “testimony for perjury” and the fact that a “[]new charge [had or has] been

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filed against [him] by Bonnie Dumanis & [the] DA’s office.” (ECF No. 4 at 1, 6).

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Rule 65 of the Federal Rules of Civil Procedure provides that “[t]he court may

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issue a preliminary injunction only on notice to the adverse party.” FED. R. CIV. P.

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65(a)(1). Plaintiff’s Motion for injunctive relief does not comply with Rule 65(a)’s

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important procedural notice requirement because he has not shown that either his

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Complaint or his Motion have been served on any named Defendant.

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Moreover, even if Plaintiff had properly served Defendants with notice of his

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Motion, it wholly lacks merit. “A preliminary injunction is an extraordinary remedy

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never awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S.

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7, 24 (2008) (citation omitted). “The proper legal standard for preliminary injunctive

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relief requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is
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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

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equities tips in his favor, and that an injunction is in the public interest.’” Stormans, Inc.

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v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20).

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As set forth in detail above, the Court has found that Plaintiff’s Complaint fails to

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state a claim upon which relief can be granted and has dismissed his pleading sua sponte

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in its entirety pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Therefore, Plaintiff has

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necessarily failed to show, for purposes of justifying preliminary injunctive relief, any

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likelihood of success on the merits of his claims. Id.; see also Asberry v. Beard, Civil

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Case No. 3:13-cv-2573-WQH JLB, 2014 WL 3943459, at *9 (S.D. Cal. Aug. 12, 2014)

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(denying prisoner’s motion for preliminary injunction because his complaint was subject

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to dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and therefore he had not

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shown he was “likely to succeed on the merits” of any claim, that “the balance of equities

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tip[ped] in his favor,” or the issuance of an injunction would serve the public interest

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(citing Winter, 555 U.S. at 20)).
Moreover, to the extent Plaintiff seeks this Court’s intervention in any ongoing

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state criminal prosecution, his request is barred by Younger v. Harris, 401 U.S. 37, 43-54

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(1971) (holding that federal courts sitting in equity cannot, absent exceptional

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circumstances, enjoin pending state criminal proceedings). Both traditional equitable

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principles and the structure of our federal system counsel against federal court injunctions

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barring or interfering with state criminal proceedings. Id. at 44; see also Green v. City of

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Tucson, 255 F.3d 1086, 1094 (9th Cir. 2001). Because it appears this is what Plaintiff

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asks this Court to do, he is doubly unlikely to succeed on the merits.
For these reasons, Plaintiff’s Motion for Injunctive Relief (ECF No. 4) must be

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DENIED.

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IV.

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Leave to Amend
Finally, while the Court would typically grant Plaintiff leave to amend in light of

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his pro se status, it concludes that doing so under the circumstances presented by

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Plaintiff’s pleadings would be futile. See Lopez, 203 F.3d at 1127; Schmier v. U.S. Court
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of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing

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“[f]utility of amendment” as a proper basis for dismissal without leave to amend).

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Amendment is futile because even if Plaintiff could somehow allege facts to show

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Defendants Dumanis, Zimmerman, or Gore violated his due process rights during his

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criminal proceedings, or that Judges Huff, Gallo, Groch, and Danielson were not

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immune, his claim for damages under § 1983 could still not yet proceed pursuant to Heck

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because his attempts at invalidating his conviction, either on direct appeal, or through a

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writ of habeas corpus, have to date been unavailing.

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A court may take judicial notice of its own records, see Molus v. Swan, Civil Case

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No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing

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United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner

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Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of

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proceedings in other courts, both within and without the federal judicial system, if those

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proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212,

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1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir.

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2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo,

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Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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The Court takes judicial notice of its own records in both Prado v. Williams, et al.,

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S.D. Cal. Civil Case No. 3:16-cv-2203-CAB-BGS and Prado v. GBDF, et al., S.D. Cal.

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Civil Case No. 3:16-cv-2414-JAH-BGS, in which Plaintiff filed writs of habeas corpus

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seeking to challenge his state court conviction in San Diego Superior Court Case No.

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SCD 255529 pursuant to 28 U.S.C. § 2254. Both those petitions have been dismissed.

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The Court also takes judicial notice of docket proceeding before the California Court of

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Appeals, District 4, Div.1, in People v. Prado, D070605, in which Plaintiff appears to

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have filed a direct appeal in San Diego Superior Court Case No. SCD255529. This appeal

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was dismissed as premature on July 11, 2016; however, and a remittur issued on Sept. 13,

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2016. See http://appellatecases.courtinfo.ca.gov/ search/ case/dockets .cfm?dist

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=41&doc_id=2148422&doc_no= D070605 (last visited Dec. 9, 2016).
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Therefore, because all these proceedings reveal Plaintiff cannot amend his pleading

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to allege the additional facts required to show either that the underlying conviction which

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forms the basis of his § 1983 claims has already been invalidated, or that the Defendants

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he seeks to sue are not absolutely immune, the Court denies leave to amend as futile. See

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Lopez, 203 F.3d at 1127; Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (noting

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that leave to amend is not required if it is “absolutely clear that the deficiencies of the

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complaint could not be cured by amendment.”) (internal citations omitted).

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V.

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Conclusion and Order
For all the reasons explained the Court:
1.

GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(ECF No. 2).
2.

DIRECTS the Watch Commander of GBDF, or his designee, to collect from

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Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly

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payments from his account in an amount equal to twenty percent (20%) of the preceding

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month’s income and forwarding those payments to the Clerk of the Court each time the

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amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION.

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3.

DIRECTS the Clerk of the Court to serve a copy of this Order on the Watch

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Commander, George Bailey Detention Facility, 446 Alta Road, Ste. 5300, San Diego,

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California, 92158.

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4.

DENIES Plaintiff’s Motion for Preliminary Injunction (ECF No. 4).

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5.

DISMISSES Plaintiff’s Complaint for failing to state a claim pursuant to 28

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U.S.C. § 1915(e)(2) and § 1915A(b), without leave to amend as futile.
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CERTIFIES that an IFP appeal from this Order would be frivolous and

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therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See

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Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548,

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550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if
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appeal would not be frivolous); and

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7.

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IT IS SO ORDERED.

DIRECTS the Clerk of Court to close the file.

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Dated: December 19, 2016

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3:16-cv-2309-BEN-KSC