Wiggins v. United States Postal Service

Filing 28

ORDER Revoking Plaintiff's In Forma Pauperis Status. The Court hereby certifies that Plaintiff's appeal is not in good faith pursuant to 28 U.S.C. § 1915(a)(3), and Revokes Plaintiff's in forma pauperis status. Signed by Judge Janis L. Sammartino on 6/15/2018. (All non-registered users served via U.S. Mail Service)(mpl). (Modified on 6/15/2018: USCA Case Number 18-55743. Order electronically transmitted to the US Court of Appeals via regenerated NEF.) (akr).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LUCIE WIGGINS,

Case No.: 17-CV-2105 JLS (MDD)
Plaintiff-Appellant,

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ORDER REVOKING PLAINTIFF’S
IN FORMA PAUPERIS STATUS

v.
UNITED STATES POSTAL SERVICE,

(ECF No. 27)

Defendant-Appellee.

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On May 14, 2018, the Court granted Defendant-Appellee’s motion to dismiss
Plaintiff’s Complaint and dismissed the case with prejudice, (ECF No. 19). Plaintiffappellant filed a timely notice of appeal from the Court’s order, (ECF No. 22). The Ninth
Circuit referred the matter back to this Court “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.”

(ECF No. 27.)

After reconsideration, the Court

CERTIFIES that Plaintiff’s appeal is not in good faith and REVOKES Plaintiff’s in forma
pauperis status.
Motions to proceed in forma pauperis on appeal are governed by 28 U.S.C. § 1915
and Federal Rule of Appellate Procedure 24. See Hooker v. Am. Airlines, 302 F.3d 1091,
1092 (9th Cir. 2002) (quoting Dixon v. Pitchford, 843 F.2d 268, 270 (7th Cir. 1988)).
Section 1915 permits a court to authorize an appeal without the prepayment of fees if the

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17-CV-2105 JLS (MDD)

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party submits an affidavit, including a statement of assets, showing that he is unable to pay

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the required filing fee. 28 U.S.C. § 1915(a)(1).

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Proceeding in forma pauperis on appeal is a privilege, however, not a right. Thus,

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“[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it

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is not taken in good faith.” 28 U.S.C. § 1915(a)(3). In the absence of some evident

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improper motive, the applicant’s good faith is established by the presentation of any issue

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on appeal that is not plainly frivolous. Farley v. United States, 354 U.S. 521, 522–23

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(1957). Thus, the request of an indigent for leave to appeal in forma pauperis may be

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denied only if the issues raised are so frivolous that the appeal would be dismissed in the

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case of a nonindigent litigant. Ellis v. United States, 356 U.S. 674, 675 (1958) (per curiam);

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Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977).

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An action is frivolous for purposes of section 1915 if it lacks any arguable basis in

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fact or law. Neitzke v. Williams, 490 U.S. 319, 328–30 (1989). A complaint or appeal

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lacks an arguable basis in law only if controlling authority requires a finding that the facts

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alleged fail to establish even an “arguable legal claim.” Guti v. INS, 908 F.2d 495, 496

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(9th Cir. 1990) (citation omitted). While the facts alleged should generally be accepted as

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true, clearly baseless, “fanciful,” “fantastic” or “delusional” factual contentions may be

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dismissed as frivolous under section 1915. Denton v. Hernandez, 504 U.S. 25, 32 (1992).

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Here, this Court clearly lacks subject matter over Plaintiff’s Complaint. Therefore,

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Plaintiff does not present an arguable legal claim. No reasonable person could suppose

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that an appeal of the Court’s rulings would have merit.

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Accordingly, the Court hereby CERTIFIES that Plaintiff’s appeal is not in good

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faith pursuant to 28 U.S.C. § 1915(a)(3), and REVOKES Plaintiff’s in forma pauperis

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

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550 (9th Cir. 1977) (indigent appellant is permitted to proceed in forma pauperis on appeal

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only if appeal would not be frivolous). Further requests to proceed on appeal in forma

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pauperis should be directed, on motion, to the Ninth Circuit, in accordance with Rule 24

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of the Federal Rules of Appellate Procedure. See Fed. R. Civ. P. 24(a); Javor v. Brown,
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295 F.2d 60, 61 (9th Cir. 1961) (appellate court can set aside district court certification of

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bad faith).

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IT IS SO ORDERED.
Dated: June 15, 2018

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