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Achilles Corelleone v. Fernando Gonzales

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 26, 2011

ACHILLES CORELLEONE,
PLAINTIFF,
v.
FERNANDO GONZALES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS ON APPEAL

Plaintiff Achilles Corelleone ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation. Plaintiff was proceeding pro se and in forma pauperis in this civil rights action. Plaintiff initiated this action by filing his complaint on June 17, 2010. On November 1, 2010, Plaintiff filed his first amended complaint. On December 3, 2010, the Court dismissed Plaintiff's first amended complaint for failure to state a claim, with leave to amend. On March 3, 2011, Plaintiff filed his second amended complaint. On May 9, 2011, the Court dismissed this action for failure to state a claim. Plaintiff subsequently filed a notice of appeal on May 17, 2011. Doc. 23.

Pursuant to 28 U.S.C. § 1915(a)(3), "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." The Court finds that Plaintiff's appeal is not taken in good faith. Plaintiff's allegations failed to state a claim. Plaintiff was provided an opportunity to amend and was unable to do so. Plaintiff failed to make specific allegations regarding Defendants Cate, Gonzales, and Folston. Plaintiff makes the most cursory of allegations against Defendants El Said and Kelso. The mere possibility of misconduct falls well short of the plausibility standard required under notice pleading. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).

Accordingly, Plaintiff's appeal is not taken in good faith, and is frivolous. Plaintiff's in forma pauperis status is HEREBY ORDERED revoked for purposes of his appeal.

IT IS SO ORDERED.

20110526

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