Foley v. Pont et al

Filing 185

ORDER in response to Ninth Circuit's 184 Referral Notice. The court certifies that the appeal is frivolous and not taken in good faith. Signed by Judge James C. Mahan on 10/1/2014. (Copies have been distributed pursuant to the NEF - cc: USCA - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL FOLEY,

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Plaintiff(s),

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Case No. 2:11-CV-1769 JCM (VCF)
ORDER

v.
MICHELLE PONT, et al.,

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Defendant(s).

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Presently before the court is a referral notice from the Ninth Circuit. (Doc. # 184).

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Plaintiff sued numerous defendants, including family members and child protective

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services (“CPS”) employees, for deprivations of his constitutional rights. (Doc. # 55). Plaintiff

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alleged that defendants conspired against him to remove his children from his custody following

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a CPS investigation. (Doc. # 55).

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On November 3, 2011, plaintiff filed a motion for leave to proceed in forma pauperis.

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(Doc. # 1). On November 4, 2011, Magistrate Judge Ferenbach granted the motion allowing

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plaintiff to proceed in forma pauperis. (Doc. # 2).

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On October 18, 2012, the court granted motions to dismiss a number of defendants with

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prejudice. (Doc. # 134). Plaintiff filed a motion to reconsider, (doc. # 136), which the court

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denied, (doc. # 160). Plaintiff then filed another motion to reconsider, (doc. # 161), which the

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court also denied, (doc. # 168).

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On July 17, 2013, plaintiff attempted to appeal the court’s order on his motion to

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reconsider. (Doc. # 169). The appeal was dismissed for lack of jurisdiction because the order

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was not final. (Doc. # 172).

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...

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...

James C. Mahan
U.S. District Judge

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On July 9, 2014, the clerk’s office provided notice to counsel pursuant to local rule 41-1

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that if no action was taken in the case within 30 days, the court would dismiss the case for want

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of prosecution. (Doc. # 178).

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On August 13, 2014, plaintiff filed an ex parte “notice of intent to continue litigation,”

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stating that he was incarcerated and thus unable to proceed against defendants due to his

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confinement. (Doc. # 179).

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On August 18, 2014, the court dismissed the case without prejudice for want of

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prosecution. (Doc. # 180). On September 16, 2014, plaintiff appealed the order of dismissal.

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(Doc. # 182).

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On September 17, 2014, the Ninth Circuit referred this matter to the district court for the

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limited purpose of determining whether in forma pauperis status should continue for plaintiff’s

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appeal. (Doc. # 184). Revocation of in forma pauperis status is appropriate where the district

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court certifies that the appeal is frivolous or not taken in good faith. 28 U.S.C. § 1915(a)(3).1

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The court finds that the appeal is not taken in good faith and that it is frivolous. This

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court dismissed plaintiff’s claims for want of prosecution. “Failure to follow a district court’s

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local rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that, in response to the

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Ninth Circuit’s referral notice, (doc. # 184), the court certifies that the appeal is frivolous and not

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taken in good faith.

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DATED October 1, 2014.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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The appellate court, however, may grant in forma pauperis status on appeal. See
O’Neal v. Price, 531 F.3d 1146, 1149 (9th Cir. 2008) (“[S]ubsections (a)(4) and (5) of Rule 24 of
the Federal Rules of Appellate Procedure give litigants a procedural route for challenging the
trial court’s certification.”).
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