Shu v. Hutt et al

Filing 22

ORDER Re: 21 Appeal Case Number Assigned. Plaintiff's in forma pauperis status is REVOKED for purposes of his pending appeal as the appeal is frivolous. Signed by Judge Richard F. Boulware, II on 2/19/2019. (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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DAVID SHU,

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Plaintiff,

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Case No. 2:18-cv-00517-RFB-VCF
ORDER

v.
NANCY HUTT, et al.,

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Defendants.

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This matter comes before the Court on the Ninth Circuit Court of Appeal’s Referral Notice.

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ECF No. 21. The Ninth Circuit refers the matter to the Court for the limited purpose of determining

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if Plaintiff’s in forma pauperis status should continue during his appeal or if Plaintiff’s appeal is

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frivolous or is taken in bad faith. Id.

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“[A]n appeal on a matter of law is frivolous where none of the legal points are arguable on

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their merits.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Here, the Court dismissed Plaintiff’s

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Complaint on only legal bases: (1) Plaintiff’s False Claims Act claim cannot be brought pro se,

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see United States ex rel. Stoner v. Santa Clara Cnty. of Office of Educ., 502 F.3d 1116, 1126–27

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(9th Cir. 2007); (2) Plaintiff’s due process claim is barred by the statute of limitations, see Perez

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v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989); and (3) Plaintiff’s state-law claims are barred by

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both the statute of limitations and by the lack of jurisdiction over Defendants, see Nev. Rev. Stat.

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11.190(3)(d); see also Nev. Rev. Stat. 11.220. The Court did not allow Plaintiff to amend his

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Complaint since amendment would be futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

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2000). Because the deficiencies in Plaintiff’s complaint cannot be argued on the merits or cured

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through amendment of Plaintiff’s Complaint, the Court finds that the pending appeal is frivolous.

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///

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IT IS THEREFORE ORDERED that Plaintiff’s in forma pauperis status is REVOKED
for purposes of his pending appeal as the appeal is frivolous.

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DATED: February 19, 2019.

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__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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