United States District Court, E.D. California
April 15, 2015
GREGORY ELL SHEHEE, Plaintiff,
FLORES, et al., Defendants. Appeal Case No. 15-15716
ORDER DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL (Docs. 24, 27.)
GARY S. AUSTIN, Magistrate Judge.
Gregory Ell Shehee ("Plaintiff") is a Fresno County Jail inmate, proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. This case was dismissed by the court on April 2, 2015, with prejudice, for failure to state a claim upon which relief may be granted under § 1983, and judgment was entered. (Docs. 21, 22.)
On April 8, 2015, Plaintiff appealed the district court's decision to the Ninth Circuit court of appeals, and filed a motion for leave to proceed in forma pauperis on appeal. (Docs. 23, 24.) On April 14, 2015, the Ninth Circuit referred the case to the district 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. (Doc. 27.)
II. IN FORMA PAUPERIS STATUS ON APPEAL
"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). The test for allowing an appeal in forma pauperis is easily met; the good faith requirement is satisfied if the appellant seeks review of any issue that is not frivolous. Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917 (1962)) (quotation marks omitted); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (if at least one issue or claim is non-frivolous, the appeal must proceed in forma pauperis as a whole). An action is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). In other words, the term "frivolous", as used in § 1915 and when applied to a complaint, "embraces not only the inarguable legal conclusion, but also the fanciful factual allegation." Id.
Plaintiff's appeal lacks any arguable basis in law or fact. The court dismissed Plaintiff's complaint for failure to state a claim, based on his failure to comply with the court's order dismissing the complaint for failure to state a claim, with leave to amend. (Doc. 21.) Plaintiff argues that he could not timely file documents because he lacked access to his documents at the Fresno County Jail. However, according to court records, Plaintiff was not incarcerated at the jail until mid-February 2015, long after the deadline to amend his complaint had expired. (Court Record.) Upon re-review of the complaint, the court finds Plaintiff's allegations to be vague. Plaintiff fails to specifically charge each defendant with conduct indicating that he or she deprived Plaintiff of a protected interest. Therefore, Plaintiff fails to state a claim against any of the defendants under § 1983. Plaintiff was granted an opportunity to amend the complaint, but he failed to do so. Thus, the district court finds Plaintiff's appeal to be frivolous, and Plaintiff's motion to proceed in forma pauperis on appeal shall be denied.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to proceed in forma pauperis on appeal, filed on April 8, 2015, is DENIED; and
2. The Clerk is directed to serve a copy of this order on the Ninth Circuit Court of Appeals.
IT IS SO ORDERED.