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Andrew Burnett v. City of Santa Clara

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


April 28, 2011

ANDREW BURNETT,
PLAINTIFF,
v.
CITY OF SANTA CLARA, STEPHEN D. LODGE CHIEF OF SANTA CLARA POLICE
DEPARTMENT, JULIE FREITAS, T. CLARK, PAUL KOFMAN, EDWARD PETERSON, TROY BENSON, PHILAMON ZARAGOZA, DOES 1-5, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER REVOKING PLAINTIFF'S IN 13 FORMA PAUPERIS STATUS

Motions to proceed in forma pauperis on appeal are governed by 28 U.S.C. § 1915 and Federal Rule of Appellate Procedure 24. See Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th 27 Cir. 2002) (quoting Dixon v. Pitchford, 843 F.2d 268, 270 (7th Cir. 1988)). Section 1915 permits a 28 court to authorize an appeal without the prepayment of fees if the party submits an affidavit, including a statement of assets, showing that he is unable to pay the required filing fee. 28 U.S.C. 2 § 1915(a)(1). 3

On March 14, 2011, the Court dismissed Plaintiff Andrew Burnett's first amended 20 complaint for failure to state a claim as to any Defendant. See Dkt. #76. Plaintiff filed a timely 21 notice of appeal from the Court's Order. See Dkt. #77. Thereafter, the Ninth Circuit referred the 22 matter back to this Court "for the limited purpose of determining whether the appeal is frivolous or 23 taken in bad faith." See Dkt. #79. The Court CERTIFIES that Plaintiff's appeal is frivolous and 24 REVOKES Plaintiff's in forma pauperis status. 25

Proceeding in forma pauperis on appeal is a privilege, however, not a right. Thus, "[a]n 4 appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in 5 good faith." 28 U.S.C. § 1915(a)(3). In the absence of some evident improper motive, the 6 applicant's good faith is established by the presentation of any issue on appeal that is not plainly 7 frivolous. Farley v. United States, 354 U.S. 521, 522-23 (1957). An action is frivolous for 8 purposes of section 1915 if it lacks any arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 9 319, 328-30 (1989). A complaint or appeal lacks an arguable basis in law only if controlling 10 authority requires a finding that the facts alleged fail to establish even an "arguable legal claim."

Guti v. INS, 908 F.2d 495, 496 (9th Cir. 1990) (citation omitted). While the facts alleged should generally be accepted as true, clearly baseless contentions may be dismissed as frivolous under 13 section 1915. Denton v. Hernandez, 504 U.S. 25, 32 (1992). 14

Here, Plaintiff's first amended complaint is so clearly without an arguable basis in fact or 15 law that no reasonable person could suppose that an appeal of the Court's rulings would have 16 merit. The Court dismissed Plaintiff's first amended complaint without leave to amend because it 17 did not appear to the Court that Plaintiff, even with additional opportunities to amend, could allege 18 any set of facts that would give rise to even an "arguable legal claim." 19

Accordingly, the Court hereby CERTIFIES that Plaintiff's appeal is frivolous pursuant to 28 U.S.C. § 1915(a)(3), and REVOKES Plaintiff's in forma pauperis status. Any further request 21 to proceed on appeal in forma pauperis should be directed, on motion, to the Ninth Circuit, in 22 accordance with Rule 24 of the Federal Rules of Appellate Procedure. See Fed. R. Civ. P. 24(a)(5). 23

IT IS SO ORDERED.

20110428

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