Atwood II v. United States of America et al
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)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 17cv1315-MMA (BLM)
DAVID GARLAND ATWOOD II,
ORDER RESPONDING TO
[Doc. No. 10]
UNITED STATES OF AMERICA; and
REVOKING IN FORMA PAUPERIS
STATUS ON APPEAL
On June 27, 2017, Plaintiff David Garland Atwood II (“Plaintiff”) proceeding pro
se, filed a complaint against the United States of America and the U.S. Probation Office
(collectively “Defendants”). See Doc. No. 1. On June 30, 2017, the Court dismissed
Plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). See Doc. No. 5. The Court
construed the matter as arising under Bivens v. Six Unknown Named Fed. Narcotics
Agents, 403 U.S, 388 (1971), and concluded Plaintiff failed to state a plausible claim
upon which relief could be granted. See id. The Court entered judgment against
Plaintiff, and Plaintiff appealed the judgment. See Doc. Nos. 6, 7.
The Ninth Circuit Court of Appeals now refers this matter for the “limited purpose
of determining whether in forma pauperis status should continue for this appeal or
whether the appeal is frivolous or taken in bad faith.” Doc. No. 10. Rule 24(a)(3) of the
Federal Rules of Appellate Procedure provides that a party granted leave to proceed in
forma pauperis (“IFP”) in district court may continue that status on appeal unless the
district court certifies that the appeal is not taken in good faith, which in this context
means that it is frivolous. See Ellis v. United States, 356 U.S. 674, 674-75 (1958). Title
28 of the United States Code, section 1915(a)(3) similarly provides that an appeal may
not be taken IFP if the trial court certifies it is not taken in good faith. For purposes of §
1915, an appeal is frivolous if it lacks any arguable basis in law or fact. See Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir.
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. See Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent
appellant is permitted to proceed in forma pauperis on appeal only if appeal would not be
The Clerk of 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.
Dated: July 19, 2017
HON. MICHAEL M. ANELLO
United States District Judge
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