Atwood II v. United States of America et al

Filing 11

ORDER Responding to 10 Referral Notice and Revoking in forma pauperis Status on Appeal. 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 bei ng 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 Court is directed to notify the Ninth Circuit Court of Appeals of this Order. Signed by Judge Michael M. Anello on 7/19/2017. (USCA Case Number 17-56010. 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

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SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 17cv1315-MMA (BLM)

DAVID GARLAND ATWOOD II,
v.

ORDER RESPONDING TO
REFERRAL NOTICE

Plaintiff,

[Doc. No. 10]

UNITED STATES OF AMERICA; and
U.S. PROBATION,

REVOKING IN FORMA PAUPERIS
STATUS ON APPEAL

Defendants.

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On June 27, 2017, Plaintiff David Garland Atwood II (“Plaintiff”) proceeding pro

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se, filed a complaint against the United States of America and the U.S. Probation Office

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(collectively “Defendants”). See Doc. No. 1. On June 30, 2017, the Court dismissed

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Plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). See Doc. No. 5. The Court

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construed the matter as arising under Bivens v. Six Unknown Named Fed. Narcotics

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Agents, 403 U.S, 388 (1971), and concluded Plaintiff failed to state a plausible claim

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upon which relief could be granted. See id. The Court entered judgment against

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Plaintiff, and Plaintiff appealed the judgment. See Doc. Nos. 6, 7.

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The Ninth Circuit Court of Appeals now refers this matter for the “limited purpose

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

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whether the appeal is frivolous or taken in bad faith.” Doc. No. 10. Rule 24(a)(3) of the
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17cv1315-MMA (BLM)

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Federal Rules of Appellate Procedure provides that a party granted leave to proceed in

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forma pauperis (“IFP”) in district court may continue that status on appeal unless the

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district court certifies that the appeal is not taken in good faith, which in this context

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means that it is frivolous. See Ellis v. United States, 356 U.S. 674, 674-75 (1958). Title

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28 of the United States Code, section 1915(a)(3) similarly provides that an appeal may

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not be taken IFP if the trial court certifies it is not taken in good faith. For purposes of §

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1915, an appeal is frivolous if it lacks any arguable basis in law or fact. See Neitzke v.

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Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir.

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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 Court is directed to notify the Ninth Circuit Court of Appeals of this

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Order. See Fed. R. App. P. 24(a)(4).

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IT IS SO ORDERED.

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Dated: July 19, 2017
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

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17cv1315-MMA (BLM)