IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 28, 2012
KENNETH A. GRIFFIN, PLAINTIFF,
J. CLARK KELSO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
On January 11, 2012, the Ninth Circuit Court of Appeals referred this matter to this court for the limited purpose of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith. See ECF No. 47. The court has reviewed plaintiff's November 16, 2011 notice of appeal. ECF No. 44. Therein, plaintiff appeals this court's finding that he did not file an opposition to the magistrate judge's August 19, 2011, recommendation that this action be dismissed. Plaintiff avers that he mailed an opposition on September 21, 2011*fn1 , and further states that from August through October 2011, he was unable to adequately prosecute this action because he underwent two hip replacement surgeries.
The Court notes that this action was not dismissed for plaintiff's failure to file an opposition; rather, this action was dismissed for plaintiff's failure to exhaust his administrative remedies. See ECF No. 37. Furthermore, plaintiff's argument that he was unable to prosecute this action is belied by his assertion that on September 21, 2011 he mailed an opposition to the magistrate judge's recommendation for dismissal. As such, this Court finds that Plaintiff's appeal is frivolous and that revocation of plaintiff's in forma pauperis status is appropriate. See 28 U.S.C. § 1915(a)(3); Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (recognizing that revocation of in forma pauperis status is appropriate where a district court finds the appeal to be frivolous).
IT IS SO ORDERED.