Opinion
Case No. 1:15-cv-00937-AWI-EPG (PC)
12-17-2019
THOMAS L. GOFF, Plaintiff, v. GAMEZ, et al., Defendants.
ORDER RE: IFP STATUS ON APPEAL (ECF NO. 98) ORDER DIRECTING CLERK TO SERVE A COPY OF THIS ORDER ON THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
By notice entered December 16, 2019, the United States Court of Appeals for the Ninth Circuit referred this matter to the District Court for the limited purpose of determining whether the in forma pauperis status of plaintiff Thomas Goff ("Plaintiff") should continue for this appeal or whether the appeal is frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).
Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir. 1968), cert. denied, 393 U.S. 891 (1968); Williams v. Marshall, 795 F.Supp. 978, 978-79 (N.D. Cal. 1992). A federal court may dismiss a claim filed in forma pauperis prior to service if it is satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2); see Sully v. Lungren, 842 F.Supp. 1230, 1231 (N.D. Cal. 1994). "A claim is 'frivolous' when it is without 'basis in law or fact,' and 'malicious' when it is 'filed with the intention or desire to harm another.'" Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (quoting Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). A finding of frivolity in this context is equivalent to finding a lack of good faith. Id. at 1110. A lack of good faith can be inferred where "plaintiffs seek to exploit the court system solely for delay or to vex defendants." Vega v. JPMorgan Chase Bank, N.A., 654 F.Supp.2d 1104, 1121 (E.D. Cal. 2009).
The Court does not find that Plaintiff takes the instant appeal in bad faith. This does not appear to be a situation where "plaintiff[] seek[s] to exploit the court system solely for delay or to vex defendants." Id.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff is entitled to proceed in forma pauperis in Appeal No. 19-17494;IT IS SO ORDERED.
2. This Order serves as notice to the parties and the United States Court of Appeals for the Ninth Circuit of the finding that Plaintiff is entitled to proceed in forma pauperis for this appeal; and
3. The Clerk of Court is directed to serve a copy of this Order on the United States Court of Appeals for the Ninth Circuit.
Dated: December 17 , 2019
/s/_________
UNITED STATES MAGISTRATE JUDGE