IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 20, 2012
KENNETH LEE MARTINEZ,
DISTRICT ATTORNEY OF SAN JOAQUIN COUNTY ET AL., DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff proceeds pro se with this civil rights lawsuit under 42 U.S.C. § 1983. On August 10, 2012, this court dismissed the case for plaintiff's failure to state a claim. Plaintiff has filed a notice of appeal, and the Ninth Circuit has asked the Court to determine whether plaintiff's in forma pauperis status should continue for the appeal or should be revoked because the appeal is frivolous or taken in bad faith. ECF No. 35. For the following reasons, the Court finds the appeal frivolous and, accordingly, revokes plaintiff's in forma pauperis status.
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 good faith standard is an objective one. See Coppedge v. United States, 369 U.S. 438, 445 (1962).
A plaintiff satisfies the "good faith" requirement if he or she seeks review of any issue that is "not frivolous."
Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge, 369 U.S. at 445). For purposes of § 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989). For those reasons stated in the magistrate judge's May 3, 2012, Findings and Recommendations, which were adopted by this Court on August 10, 2012, this Court now holds that the instant Complaint is frivolous. The Court thus certifies that Plaintiff's appeal is not taken in good faith.
Accordingly, it is hereby ORDERED that the Clerk of Court is directed to notify the Ninth Circuit Court of Appeals that the court certifies, pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure, that plaintiff's appeal is not taken in good faith, and he must therefore seek further authorization from the Court of Appeals pursuant to Rule 24(a)(5) to obtain leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
© 1992-2012 VersusLaw Inc.