Downing v. Graves et al

Filing 92

ORDER re 90 Appeal Remark. Plaintiff's in forma pauperis is Revoked. Signed by Judge James C. Mahan on 5/19/2017. (Copies have been distributed pursuant to the NEF, cc: USCA - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CURTIS L. DOWNING,

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Plaintiff(s),

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Case No. 2:12-CV-332 JCM (CWH)
ORDER

v.
JOHNNIE GRAVES, et al.,

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Defendant(s).

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Presently before the court is the Ninth Circuit’s referral “for the limited purpose of

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

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is frivolous or taken in bad faith.” (ECF No. 90); see also 28 U.S.C. § 1915(a)(3) (“An appeal

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may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good

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faith.”).

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“An appeal is frivolous ‘when the result is obvious or the appellant’s arguments are wholly

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without merit.’” Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d 1004, 1007 (9th Cir. 2015)

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(quoting Glanzman v. Uniroyal, Inc., 892 F.2d 58, 61 (9th Cir. 1989)), cert. denied sub nom. Flynn

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v. Yellowstone Mountain Club, LLC, 136 S. Ct. 1455 (2016).

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Here, plaintiff appeals this court’s April 28, 2017, order denying plaintiff’s motion for

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relief from judgment. (ECF No. 86). That order rejected plaintiff’s motion because the Ninth

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Circuit had already affirmed this court’s adjudication of the case. See (ECF Nos. 67, 74, 86).

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Moreover, this court declined to consider plaintiff’s criticism of the Ninth Circuit’s adjudication

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of his appeal. (ECF No. 86).

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James C. Mahan
U.S. District Judge

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Therefore, it appears that plaintiff’s arguments on appeal would likely be “wholly without

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merit.” Blixseth, 796 F.3d at 1007. Consequently, the appeal is not taken in good faith. See

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Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s in forma

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pauperis status be, and the same hereby is, REVOKED.
DATED May 19, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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