Opinion
Case No. 14-CV-05423-LHK
11-01-2015
M. L., Plaintiff, v. EVALINA BARTH, Defendant.
ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS
On October 5, 2015, the Court denied Plaintiff M.L.'s motion for the appointment of a guardian ad litem and dismissed the complaint without prejudice. ECF No. 26. Plaintiff filed a timely notice of appeal from the Court's Order. ECF No. 28. On October 29, 2015, the Ninth Circuit referred the matter back to this Court "for the limited purpose of determining whether [Plaintiff's] in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith." See No. 15-17130, Dkt. 2. The Court CERTIFIES that Plaintiff's appeal is frivolous and REVOKES Plaintiff's in forma pauperis status.
Unless otherwise indicated, all ECF references are from the docket of No. 14-5423 in the Northern District of California. --------
Motions to proceed in forma pauperis on appeal are governed by 28 U.S.C. § 1915 and Federal Rule of Appellate Procedure 24. See Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). Section 1915 permits a court to authorize an appeal without the prepayment of fees if the party submits an affidavit, including a statement of assets, showing that the party is unable to pay the required filing fee. 28 U.S.C. § 1915(a)(1).
Proceeding in forma pauperis on appeal is a privilege, however, not a right. Thus, "[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." 28 U.S.C. § 1915(a)(3); see also Fed. R. App. P. 24. In the absence of some evident improper motive, the applicant's good faith is established by the presentation of any issue on appeal that is not frivolous. See Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1997) (citing Coppedge v. United States, 369 U.S. 438, 445 (1962)); see also Hooker, 302 F.3d at 1092. An action is frivolous for purposes of § 1915 if it "lacks an arguable basis in law or in fact." Shehee v. King, No. 1:14-CV-00590-AWI-GSA-PC, 2015 WL 1839817, at *2 (E.D. Cal. Apr. 21, 2015) (quoting Neitzke v. Williams, 490 U.S. 319, 328-30 (1989)). A complaint or appeal lacks an arguable basis in law only if controlling authority requires a finding that the facts alleged fail to establish even an "arguable legal claim." Guti v. INS, 908 F.2d 495, 496 (9th Cir. 1990) (citation omitted). While the facts alleged should generally be accepted as true, clearly baseless contentions may be dismissed as frivolous under § 1915. Denton v. Hernandez, 504 U.S. 25, 32 (1992).
Here, Plaintiff's appeal lacks an arguable basis in fact or law and no reasonable person would find that an appeal of the Court's rulings would have merit. As a minor, Plaintiff cannot bring suit without a guardian ad litem. See Fed. R. Civ. P. 17(c)(2). This Court declined to appoint a guardian for Plaintiff because Plaintiff failed to suggest a guardian and Plaintiff incorrectly asserted that the appointment of a guardian was requested by a California Superior Court. ECF No. 26. Accordingly, the Court dismissed Plaintiff's complaint without prejudice to Plaintiff bringing suit through the appropriate means. Id. Plaintiff has not done so. Plaintiff's appeal of this Court's order lacks an "arguable legal claim" and is therefore frivolous. Guti, 908 F.2d at 496.
Accordingly, the Court hereby CERTIFIES that Plaintiff's appeal is frivolous pursuant to 28 U.S.C. § 1915(a)(3), and REVOKES Plaintiff's in forma pauperis status. Any further request to proceed on appeal in forma pauperis should be directed, on motion, to the Ninth Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure. See Fed. R. App. P. 24(a)(5).
IT IS SO ORDERED.
Dated: November 1, 2015
/s/_________
LUCY H. KOH
United States District Judge