Reed v. Paramo

Filing 314

ORDER Responding to Referral Notice. Signed by Judge Janis L. Sammartino on 10/16/23.(All non-registered users served via U.S. Mail Service)(Ninth Circuit Court notified via AdHoc)(aas)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

MYCHAL ANDRA REED,
Plaintiff,

12
13

Case No.: 18-CV-361 JLS (DEB)
ORDER RESPONDING TO
REFERRAL NOTICE

v.

14
15

(ECF No. 313)
D. PARAMO, et al.,
Defendants.

16
17
18

On February 26, 2018, Plaintiff Mychal Andra Reed—a state prisoner proceeding

19

pro se and in forma pauperis (“IFP”)—filed a complaint pursuant to 42 U.S.C. § 1983

20

against R.J. Donovan Correctional Facility (“RJD”) staff, including Defendants Daniel

21

Parama and E. Zendejas (collectively, “Defendants”). See ECF No. 3. Following the

22

Court’s ruling on a motion to dismiss, see ECF No. 30, Plaintiff filed his Second Amended

23

Complaint (“SAC,” ECF No. 60). After much back and forth between the Parties,

24

Defendants moved for summary judgment.

25

Defendants’ Motion for Summary Judgment as to all but one of the claims raised in the

26

SAC. See ECF No. 249.

See ECF No. 181.

The Court granted

27

In its Order granting partial summary judgment, the Court informed Plaintiff that it

28

would entertain a motion for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1).
1
18-CV-361 JLS (DEB)

1

Id. at 28. Plaintiff filed such a motion, see ECF No. 256, but later moved to withdraw it,

2

see ECF No. 259. The Court allowed Plaintiff to withdraw his request, though it strongly

3

encouraged him to take advantage of the resource of Court-appointed pro bono counsel.

4

See ECF No. 261. Plaintiff also filed several motions asking the Court to reconsider its

5

summary judgment decision. See ECF Nos. 252, 288, 294, 303. The Court denied each

6

one. See ECF Nos. 255, 290, 296, 309. Plaintiff later filed a motion to voluntarily dismiss

7

his final claim, ECF No. 297, which the Court granted, ECF No. 299.

8

September 28, 2023, Plaintiff filed a Notice of Appeal (ECF No. 310).

Then, on

9

The United States Court of Appeals for the Ninth Circuit now refers this matter to

10

the Court for the “limited purpose of determining whether [IFP] status should continue for

11

this appeal or whether the appeal is frivolous or taken in bad faith.” ECF No. 313 at 1.

12

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

13

leave to proceed IFP in district court may continue under that status on appeal unless the

14

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

15

that it is frivolous. See Ellis v. United States, 356 U.S. 674, 674–75 (1958). And

16

28 U.S.C. § 1915(a)(3) similarly provides that an appeal may not be taken IFP if the trial

17

court certifies it is not taken in good faith. For purposes of § 1915, an appeal is “frivolous”

18

if it lacks any arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319, 325

19

(1989); see also Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (explaining that an

20

indigent appellant is permitted to proceed IFP on appeal only if appeal would not be

21

frivolous).

22

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

23

any arguable basis in law or fact, and thus is not taken “in good faith” pursuant to

24

28 U.S.C. § 1915(a)(3). Accordingly, the Court hereby REVOKES Plaintiff’s IFP status.

25

///

26

///

27

///

28

///
2
18-CV-361 JLS (DEB)

1

The Clerk of Court is DIRECTED to notify the Ninth Circuit Court of Appeals of this

2

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

3

IT IS SO ORDERED.

4

Dated: October 16, 2023

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
18-CV-361 JLS (DEB)