Opinion
2:21-cv-00489-TLN-AC
09-07-2021
PATRICK BRADY, Plaintiff-Appellant, v. SCOTT JONES, Sheriff, et al., Defendants-Appellees,
Ninth Circuit No. 21-16386
ORDER FINDING APPEAL FRIVOLOUS AND REVOKING IN FORMA PAUPERIS STATUS
Troy L. Nunley United States District Judge
This is a closed federal civil rights action. Plaintiff Patrick Brady (“Plaintiff”), a federal pretrial detainee being held in the Sacramento County Jail, appeals to the Ninth Circuit Court of Appeals this Court's dismissal of his action without leave to amend. (ECF No. 25.) The Ninth Circuit referred the matter to this Court for a determination of whether Plaintiff's in forma pauperis (“IFP”) status “should continue for this appeal or whether the appeal is frivolous or taken in bad faith.” (ECF No. 28.) The Court determines that Plaintiff's IFP status should not continue.
“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 . . . [t]he 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) (quoting Coppedge v. United States, 369 U.S. 438, 445 (1962)); see also Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (noting that an appeal is taken in “good faith” if it seeks review of “non-frivolous” issues and holding that if at least one issue or claim is non-frivolous, the appeal must proceed IFP 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 (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.
As thoroughly detailed by the magistrate judge in the June 24, 2021 findings and recommendations and subsequently adopted by this Court on August 6, 2021, Plaintiff's complaint was frivolous. (ECF No. 23 (adopting in full the findings and recommendations at ECF No. 20).) More specifically, Plaintiff's claims failed as a matter of law and amendment would be futile because: (1) Plaintiff alleges facts showing a legitimate government purpose for his placement in a total separation unit, which is fatal to his due process claim; (2) Plaintiffs' second and third claims are not ripe; and (3) the nature of the purported dangers specified in Plaintiff's deliberate indifference claim are indisputably speculative. (See ECF No. 20 at 6-9.) In sum, there are no valid grounds on which an appeal can be based, given that none of the arguments Plaintiff made to this Court would be non-frivolous if made again on appeal.
Based on the record before it, the Court finds and certifies that any appeal taken from its August 6, 2021 Order dismissing Plaintiff's action (ECF No. 23) is frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Hooker, 302 F.3d at 1092; Neitzke, 490 U.S. at 325. Accordingly, Plaintiff's IFP status is hereby REVOKED.
The Clerk of the Court is directed to notify Plaintiff and the Ninth Circuit of this Order forthwith. See Fed. R. App. P. 24(a)(4). Plaintiff may file a motion for leave to proceed IFP on appeal in the Ninth Circuit within thirty (30) days after service of notice of this Order. See Fed. R. App. P. 24(a)(5). Any such motion “must include a copy of the affidavit filed in the district court and the district court's statement of reasons for its action.” Id.
IT IS SO ORDERED.