ONeil v. New York State

Filing 15

ORDER. IT IS ORDERED that the Court REVOKES Plaintiff's in forma pauperis status 4 for the purpose of her pending appeal 12 . IT IS FURTHER ORDERED that the Clerk's Office shall provide the Circuit with a copy of this Order. Signed by Judge Gloria M. Navarro on 1/7/2021. (Copies have been distributed pursuant to the NEF cc: USAC - HAM)

Case 2:20-cv-01203-GMN-VCF Document 15 Filed 01/07/21 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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AIMEE LYNN O’NEIL,
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Plaintiff,
vs.

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STATE OF NEW YORK,
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Defendant.

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Case No.: 2:20-cv-01203-GMN-VCF
App. No. 20-17487
ORDER

Before the Court is the Referral Notice, (ECF No. 14), of the United States Court of

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Appeals for the Ninth Circuit, which requests this Court to determine “whether [Plaintiff’s] in

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forma pauperis status should continue for this appeal . . . .” For the reasons discussed below,

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the Court REVOKES Plaintiff Aimee O’Neil’s (“Plaintiff’s”) in forma pauperis status.

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Under 28 U.S.C. § 1915(a)(3), an appellant may have his in forma pauperis status

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revoked on appeal “if the trial court certifies in writing that [the appeal] is not taken in good

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faith.” Revocation is also appropriate where the appeal is wholly frivolous. See Hooker v.

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American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).

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Here, the Complaint asserts that the State of New York hired men to harass and spy on

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Plaintiff. (See Compl. at 5, ECF No. 5). The Court has previously characterized Plaintiff’s

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allegations as frivolous. (Screening Order at 4:23–5:3, ECF No. 4); (Report and

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Recommendation 1:18–2:9, ECF No. 6); (Order Adopting Report and Recommendation, ECF

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No. 10). Even if Plaintiff’s allegations had factual merit, the State of New York is not

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amenable to suit because it has not waived its sovereign immunity guaranteed by the Eleventh

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Amendment to the United States Constitution. See Alabama v. Pugh, 438 U.S. 781, 782 (1978).

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Therefore, given that Plaintiff’s present appeal is frivolous, the Court revokes Plaintiff’s in

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forma pauperis status on appeal.

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Case 2:20-cv-01203-GMN-VCF Document 15 Filed 01/07/21 Page 2 of 2

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Accordingly,

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IT IS HEREBY ORDERED that the Court REVOKES Plaintiff’s in forma pauperis

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status for the purpose of her pending appeal.
IT IS FURTHER ORDERED that the Clerk’s Office shall provide the Circuit with a
copy of this Order.

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Dated this ___ day of January, 2021.

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___________________________________
Gloria M. Navarro, District Judge
UNITED STATES DISTRICT COURT

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