Florer v. Kenney et al

Filing 91

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS PAUPERIS ON APPEAL re 90 Order of USCA, by Judge Robert J. Bryan. (cc: Pltf, COA)(DK)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DENNIS FLORER,
Plaintiff,

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CASE NO. C11-5047

v.

ORDER DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS
ON APPEAL

KENNEY, L.L. FIGUEROA, et al.,
Defendants.
This matter comes before the Court on referral from the Ninth Circuit Court of Appeals

17 for the limited purpose of determining whether in forma pauperis status should continue for
18 Plaintiff’s appeal. Dkt. 90.
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The Prison Litigation Reform Act of 1995 ("PLRA") obligates the Court to review notice

20 of appeals filed by all persons proceeding IFP and by those, like Plaintiff, who are “incarcerated
21 or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for,
22 violations of criminal law or the terms or conditions of parole, probation, pretrial release, or
23 diversionary program,” “as soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2)
24 and 1915A(b). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner
ORDER DENYING LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL- 1

1 complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which
2 seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B); Lopez v.
3 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir.
4 2000). To proceed on appeal in forma pauperis, 28 U.S.C. § 1915(a)(1) requires that a litigant's
5 appeal not be frivolous. The litigant need not show probable success on the merits, but the appeal
6 must involve legal points arguable on their merits and therefore not frivolous.
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As indicated in the Order denying the motion for immediate injunctive relief for medical

8 care evaluation, Plaintiff failed to submit any evidence that the decisions made by Defendants
9 were medically unsound, let alone a manifestation of deliberate indifference to his medical
10 needs. Dkt. 76 pp. 1-2. Accordingly, the appeal lacks an arguable basis in fact and/or law and
11 the Court finds that an in forma pauperis appeal would not be taken in good faith pursuant to 28
12 U.S.C. § 1915(a)(3).
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ACCORDINGLY;

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IT IS ORDERED:

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Application to proceed in forma pauperis on appeal is DENIED.

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Dated this 25th day of August, 2011.

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A
ROBERT J. BRYAN
United States District Judge

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ORDER DENYING LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL- 2