Fernandez v. Bannister et al

Filing 10

ORDER re 8 USCA Order. This Court certifies that any in forma pauperis appeal from its order 3 would not be taken "in good faith". The Clerk shall send this order to USCA (sent via NEF 1/17/14). Signed by Judge Miranda M. Du on 1/16/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KEVIN FERNANDEZ,

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Case No. 3:13-cv-00412-MMD-VPC
Plaintiff,

ORDER

v.
BRUCE BANNISTER, et al.,
Defendant.

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This is a closed prisoner civil rights action brought pursuant to 42 U.S.C. § 1983.

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On December 23, 2013, the Court granted Plaintiff’s application to proceed in forma

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pauperis but dismissed this action for failure to state a claim for which relief may be

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granted. (Dkt. no. 3.) Judgment was entered the same day. (Dkt. no. 5.) Plaintiff filed a

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notice of appeal on January 2, 2014. (Dkt. no. 6.)

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On January 7, 2014, the Ninth Circuit referred this matter to the District Court for

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the limited purpose of determining whether Plaintiff’s in forma pauperis status should

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continue on appeal or whether the appeal is frivolous or taken in bad faith. (Dkt. no. 8.)

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28 U.S.C. § 1915(a)(3) provides that “[a]n appeal may not be taken in forma pauperis if

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the trial court certifies in writing that it is not taken in good faith.” “In the absence of

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some evident improper motive, the applicant’s ‘good faith’ is established by presentation

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of any issue that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674, 674

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(1958). The standard for determining whether an appeal is frivolous is essentially the

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same as the standard for determining whether a claim is frivolous, i.e., whether it lacks

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an arguable basis either in law or in fact. See Franklin v. Murphy, 745 F.2d 1221, 1227–

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28 (9th Cir. 1984); see also 28 U.S.C. § 1915(e)(2) (stating that suit must be dismissed

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if it is frivolous, fails to state a claim, or is brought against defendants immune from suit

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for monetary damages).

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The Court dismissed this action for failure to state a claim upon which relief could

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be granted because the claims asserted are the same as the issues raised in another

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case, which is also pending before the Ninth Circuit Court of Appeals. (Dkt. no. 3.) The

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Court therefore concludes that Plaintiff’s appeal lacks an arguable basis in law and is

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frivolous.

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This Court certifies that any in forma pauperis appeal from its order dated

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December 23, 2013 (dkt. no. 3), would not be taken “in good faith” pursuant to 28

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U.S.C. § 1915(a)(3).

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It is further ordered that the Clerk of Court shall send this order to the United
States Court of Appeals for the Ninth Circuit.
DATED THIS 16th day of January 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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