Webb v. Busey et al

Filing 22

ORDER Revoking In Forma Pauperis Status re the Court of Appeal's 21 Referral. Signed by Judge Tana Lin.(LH) (cc: 9th Circuit Court of Appeals)

Case 3:22-cv-05397-TL Document 22 Filed 11/21/22 Page 1 of 3

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. 3:22-cv-05397-TL

DAVID Q. WEBB,
v.

Plaintiff,

ORDER REVOKING IN FORMA
PAUPERIS STATUS

KELLY BUSEY, et al.,

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Defendants.

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This matter is before the Court on referral from the United States Court of Appeals for

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the Ninth Circuit. Dkt. No. 21. The Ninth Circuit has referred this matter back to the Court to

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determine if in forma pauperis (IFP) status should continue for pro se Plaintiff David Q. Webb’s

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appeal of this Court’s Order and Judgment dismissing his case against employees of the Gig

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Harbor Police Department with prejudice for failure to state a claim upon which relief may be

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granted. See Dkt. Nos. 17, 18. The Court FINDS Plaintiff’s appeal to be frivolous and therefore

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REVOKES

his in forma pauperis status.

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ORDER REVOKING IN FORMA PAUPERIS STATUS - 1

Case 3:22-cv-05397-TL Document 22 Filed 11/21/22 Page 2 of 3

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Plaintiff Webb originally filed the claims at issue as part of a separate action, Webb v.

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Busey, No. C22-5030 (Busey I). Busey I, Dkt. Nos. 1-1, 5. In that case, the District Judge adopted

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the United States Magistrate Judge’s recommendation to deny IFP status over Plaintiff’s

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objections and dismissed the case without prejudice to re-filing. Busey I, Dkt. Nos. 7, 8, 11.

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Within weeks of dismissal, Plaintiff filed a new IFP application and proposed complaint that

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named five of the same defendants as in Busey I and asserted the same causes of action. Dkt. No.

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1. This Court granted Plaintiff an opportunity to show cause how he had cured the deficiencies

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previously identified but Plaintiff failed to plead the facts necessary to state a claim for relief.

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Dkt. Nos. 14, 16, 17. The Court therefore dismissed the case pursuant to 28 U.S.C. § 1915 and

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entered judgment accordingly. Dkt. Nos. 17, 18. Plaintiff appealed to the Ninth Circuit. Dkt.

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No. 19.

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The Ninth Circuit referred the matter back to this Court “for the limited purpose of

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

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appeal is frivolous or taken in bad faith” pursuant to 28 U.S.C. § 1915(a)(3). Dkt. No. 21 at 1. A

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good faith appeal must seek review of at least one “non-frivolous” issue or claim. See Hooker v.

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Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). A frivolous claim “lacks an arguable basis

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either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). As noted in the Court’s

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order of dismissal, Plaintiff’s most recent complaint failed to state a claim for relief under Title

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VI, the Fourth Amendment, the Fourteenth Amendment, or Section 1983 due to inability to plead

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facts to support those claims. Dkt. No. 17 at 3–5. Plaintiff has been provided multiple

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opportunities over multiple legal cases to cure the deficient complaint and the Court determined

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that it would be futile to grant leave for further amendment. Id. at 6.

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ORDER REVOKING IN FORMA PAUPERIS STATUS - 2

Case 3:22-cv-05397-TL Document 22 Filed 11/21/22 Page 3 of 3

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Since none of Plaintiff’s claims have “an arguable basis either in law or in fact” (Neitzke,

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490 U.S. at 325), the Court ORDERS Plaintiff’s IFP status REVOKED for the purpose of appeal

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pursuant to 28 U.S.C. § 1915(a)(3).

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The Clerk shall provide a copy of this Order to all parties and the U.S. Court of Appeals
for the Ninth Circuit.
Dated this 21st day of November, 2022.

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A

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Tana Lin
United States District Judge

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ORDER REVOKING IN FORMA PAUPERIS STATUS - 3