Jefferson v. Hollingsworth et al

Filing 46

ORDER Responding to 45 Referral Notice. After review of the record herein, the Court concludes that Plaintiff's appeal lacks any arguable basis in law or fact, and thus is considered as not being taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). Accordingly, the Court hereby REVOKES Plaintiff's IFP status. The Clerk of the Court is directed to notify the Ninth Circuit Court of Appeals of this Order. Signed by Judge Michael M. Anello on 3/7/2019. (USCA Case Number 19-55261. Order electronically transmitted to the US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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JAMES LEROYE JEFFERSON,
Plaintiff,

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Case No. 17cv1099-MMA (BGS)
ORDER RESPONDING TO
REFERRAL NOTICE

vs.
HOLLINGSWORTH, et al.,

[Doc. No. 45]

Defendants.

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Plaintiff James Leroye Jefferson, a California state prisoner proceeding pro se and

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in forma pauperis, filed an amended complaint against the California Prison Industry

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Authority. See Doc. No. 39. The Court screened and dismissed Plaintiff’s amended

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complaint pursuant to 28 U.S.C. § 1915(e)(2)(b)(iii) and § 1915A(b)(2). See Doc. No.

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40. Plaintiff filed a timely Notice of Appeal. See Doc. No. 42. The United States Court

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of Appeals for the Ninth Circuit has referred the matter to this Court for the “limited

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purpose of determining whether in forma pauperis status should continue for this appeal

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or whether the appeal is frivolous or taken in bad faith.” See Doc. No. 58.

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Rule 24(a)(3) of the Federal Rules of Appellate Procedure provides that a party

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granted leave to proceed in forma pauperis (“IFP”) in district court may continue in that

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status on appeal unless the district court certifies that the appeal is not taken in good faith,
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17cv1099-MMA (BGS)

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which in this context means that it is frivolous. See Ellis v. United States, 356 U.S. 674,

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674-75 (1958). Title 28 of the United States Code, section 1915(a)(3), similarly provides

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that an appeal may not be taken IFP if the trial court certifies it is not taken in good faith.

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For purposes of section 1915, an appeal is “frivolous” if it lacks any arguable basis in law

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or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d

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1221, 1225 (9th Cir. 1984).

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After review of the record herein, the Court concludes that Plaintiff’s appeal lacks

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any arguable basis in law or fact, and thus is considered as not being taken “in good

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faith” pursuant to 28 U.S.C. § 1915(a)(3). Accordingly, the Court hereby REVOKES

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Plaintiff’s IFP status. See Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent

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appellant is permitted to proceed in forma pauperis on appeal only if appeal would not be

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frivolous).

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The Clerk of the Court is directed to notify the Ninth Circuit Court of Appeals of
this Order. See Fed. R. App. P. 24(a)(4).
IT IS SO ORDERED.
DATE: March 7, 2019

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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17cv1099-MMA (BGS)