Plaintiff proceeds under 42 U.S.C. § 1983 in these two related cases. Plaintiff, who was found not guilty of a criminal offense by reason of insanity, is civilly committed to a state hospital pursuant to Cal. Pen. Code § 1026. Plaintiff has been granted in forma pauperis status in both cases. This order is directed solely to Case No. 2:12-cv-0146 LKK AC P, in which plaintiff's request for a temporary restraining order and preliminary injunction was denied on April 8, 2013. ECF No. 32 (adopting Findings and Recommendations, ECF No. 29). Plaintiff has filed an interlocutory appeal from this ruling. The Ninth Circuit has referred this matter "to the district court for the limited purposed of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith." ECF No. 36, filed on April 22, 2013, citing 28 U.S.C.§ 1915(a)(3); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).
Fed. R. App. P. 24(a)(3) permits a party who has been allowed to proceed in forma pauperis in the district court to proceed on appeal in forma pauperis unless the district court certifies the appeal not to have been "taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis." Fed. R. App. P. 24(a)(3)(A). The court must state its reasons in writing for such a certification or finding. Id.
In the underlying complaint (Case No. 2:12-cv-0146 LKK AC P), plaintiff alleges that while he was housed at Solano County Jail in 2011 pending superior court proceedings under Cal. Pen. Code § 1026.2 (regarding restoration to sanity), the conditions of his confinement violated his constitutional rights. Plaintiff alleges that defendants violated his Fourteenth Amendment due process and equal protection rights by (1) confining him in administrative segregation from July 18 to August 17, 2011, and (2) housing him in general population as a "prisoner" thereafter until his return to Atascadero State Hospital on November 9, 2011. Plaintiff contends that as a "civil commitment" he may not be treated as a criminally convicted "prisoner." He alleges that he was denied necessary mental health treatment and denied privileges to which he was entitled as a civil detainee. Plaintiff seeks declaratory and injunctive relief as well as an award of compensatoy r and punitive damages. Complaint, ECF No. 1.
By his motion for preliminary injunctive relief, plaintiff sought a guarantee of mental health treatment and designation as a civil detainee at the Solano County Jail in relation to an anticipated return on or about February 25, 2013 for further proceedings. Plaintiff failed to make the showing necessary for preliminary injunctive relief. He also failed to demonstrate the inadequacy of Cal. Pen. Code § 1026.2(c), which provides a state court remedy for a facility's failure to provide necessary treatment and appropriate accommodations pending a sanity restoration hearing. See ECF No. 29. Moreover, the court determined that plaintiff had not stated a colorable claim that he is constitutionally entitled to be classified and housed as a civil detainee. Id.
After review of the record, and for the reasons stated in the Findings and Recommendations (ECF No. 29) adopted on April 8, 2013 (ECF No. 32), the court finds that plaintiff's appeal is frivolous and therefore not taken in good faith. See 28 U.S.C.§ 1915(a)(3); Hooker, 302 F.3d 1091-92. Plaintiff's in forma pauperis status therefore should not continue for this appeal.
The Clerk shall serve a copy of this order on the United States Court of Appeals for the Ninth Circuit (Case No. 13-15579).
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