Penwell v. Washington State Department of Corrections et al

Filing 13

ORDER re 12 Referral Notice from the United States Court of Appeals for the Ninth Circuit. Plaintiff's in forma pauperis status should NOT continue on appeal. Signed by Judge Thomas S. Zilly. (cc: USCA via NEF)**2 PAGE(S), PRINT ALL**(Tony Penwell, Prisoner ID: 274745)(MJV)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TONY PENWELL,

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Plaintiff,

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v.
WASHINGTON STATE
DEPARTMENT OF CORRECTIONS,
et al.,

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ORDER

Defendants.

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C24-5748 TSZ

THIS MATTER comes before the Court on a referral notice, docket no. 12, from
the United States Court of Appeals for the Ninth Circuit, pursuant to 28 U.S.C.
§ 1915(a)(3), for the limited purpose of determining whether Plaintiff’s in forma pauperis
status should continue for his appeal or whether the appeal is frivolous or taken in bad
faith.
An appeal is taken in “good faith” where it seeks review of at least one issue or
claim that is found to be “non-frivolous.” Hooker v. American Airlines, 302 F.3d 1091,
1092 (9th Cir. 2002). An issue is “frivolous” where it “lacks an arguable basis either in
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

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ORDER - 1

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The Court concludes Plaintiff’s appeal is frivolous because it lacks an arguable

2 basis in law. For the reasons articulated in the Report and Recommendation (docket
3 no. 6), subsequently adopted by the Court (docket no. 8), Plaintiff’s claims are either
4 moot or fail to state a claim. Plaintiff’s in forma pauperis status should NOT continue on
5 appeal.
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IT IS SO ORDERED.

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The Clerk is DIRECTED to send a copy of this Order to all counsel of record,

8 Plaintiff pro se, and the United States Court of Appeals for the Ninth Circuit.
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Dated this 22nd day of November, 2024.

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A

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Thomas S. Zilly
United States District Judge

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ORDER - 2