Opinion
CASE NO. 1:19-cv-00271-AWI-BAM (PC)
05-14-2021
LAWRENCE CHRISTOPHER SMITH, Plaintiff, v. CAMPBELL, et al., Defendant.
ORDER REGARDING IN FORMA PAUPERIS STATUS ON APPEAL
(Doc. No. 45)
Plaintiff Lawrence Christopher Smith is a state prisoner who proceeded pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On March 17, 2021, the assigned magistrate judge issued findings and recommendations recommending that Plaintiff's motion for relief from judgment be denied and that this case be dismissed with prejudice for bad-faith conduct. Doc. No. 38. The magistrate judge found that terminating sanctions were appropriate due to Plaintiff's bad-faith conduct in this case and other companion cases before the Court. Id. The findings and recommendations were adopted in full on April 14, 2021. Doc. No. 40. Judgment was entered on the same date. Doc. No. 41. On May 7, 2021, Plaintiff filed a notice of appeal. Doc. No. 42.
By notice entered May 12, 2021, the United States Court of Appeals for the Ninth Circuit referred this matter to this Court for the limited purpose of determining whether in forma pauperis status should continue for Plaintiff's appeal or whether the appeal is frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. Amer. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the district court finds the appeal to be frivolous).
For the reasons discussed below, the Court certifies that Plaintiff's appeal is not taken in good faith, and that his in forma pauperis status is revoked.
The Federal Rules of Appellate Procedure provide as follows:
(3) Prior Approval. A party who was permitted to proceed in forma pauperis in the district-court action . . . may proceed on appeal in forma pauperis without further authorization, unless:Fed. R. App. P. 24(a)(3)(A).
(A) the district court—before or after the notice of appeal is filed—certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding[.]
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, and good faith is demonstrated when an individual "seeks appellate review of any issue not frivolous." See Coppedge v. United States, 369 U.S. 438, 445 (1962). For purposes of 28 U.S.C. § 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
A review of the record in this action reveals that Plaintiff's appeal is merely an effort to continue the same bad-faith conduct for which this action was dismissed. Furthermore, Plaintiff has filed appeals in other cases dismissed for the same bad-faith conduct, and the Court has certified that those appeals were also not taken in good faith. See Smith v. Weiss, No. 21-15516 (9th Cir. filed Mar. 22, 2021); Smith v. Becerra, No. 21-15068 (9th Cir. filed Jan. 11, 2021). Therefore, for the reasons stated in the magistrate judge's March 17, 2021 findings and recommendations, as adopted in full by this Court on April 14, 2021, the Court certifies that Plaintiff's appeal is not taken in good faith.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma pauperis in Appeal No. 21-15831;
2. The Clerk of the Court is directed to notify the United States Court of Appeals for the Ninth Circuit that this Court certifies, pursuant to Federal Rule of Appellate
Procedure 24(a)(3)(A), that Plaintiff's appeal is not taken in good faith, and that 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; andIT IS SO ORDERED. Dated: May 14, 2021
3. The Clerk of the Court is directed to serve a copy of this order on the parties and the United States Court of Appeals for the Ninth Circuit.
/s/_________
SENIOR DISTRICT JUDGE