Opinion
3:11-cv-00079-ECR-WGC
06-26-2012
ENOMA IGBINOVIA, Plaintiff, v. JAMES G. COX, et al., Defendants.
Order
This is a pro se prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. On February 10, 2012, we granted Defendants' Motion for Summary Judgment (#50) with respect to Plaintiff's Fourteenth Amendment Due Process claim, denied the motion with respect to Plaintiff's First Amendment claim, and denied Plaintiff's Motion for Summary Judgment (#26). Defendants have since filed a second Motion for Summary Judgment (#62) with respect to Plaintiff's remaining First Amendment claim. On May 14, 2012, we denied (#64) Plaintiff's motion to reconsider (#55) our previous order (#50).
On September 6, 2012, Plaintiff filed a notice of appeal as to the Court's previous orders (##50, 64). On June 21, 2012, Plaintiff filed a motion for leave to proceed in forma pauperis (#77) and a motion requesting a waiver of appeal filing fee (#79). The motions are ripe and we now rule on them.
Plaintiff requests that the Court allow him to proceed in forma pauperis on appeal. Federal Rule of Appellate Procedure 24(a)(3) provides that, in civil appeals, forma pauperis status granted by the district court at any time continues automatically on appeal unless such status is revoked. As companion to this rule, 28 U.S.C. § 1915(a)(3) further provides that the district court may revoke in forma pauperis status for any civil appeal if that court determines that the appeal is not taken in good faith. Furthermore, Ninth Circuit case law equates the term "bad faith" in the statute to include frivolous appeals. See Hooker v. Am. Airlines, 302 F.3d 1091 (9th Cir. 2002) (revocation of forma pauperis status is appropriate where district court finds the appeal to be frivolous). A district court may therefore revoke forma pauperis status where it determines there is no merit to the appeal.
We find that Plaintiff's appeal is frivolous. The Court of Appeals lacks jurisdiction over an appeal where the challenged order is not final or appealable. See FED. R. CIV. P. 54(b); Chacon v. Babcock, 640 F.2d 221, 222 (9 th Cir. 1981) (order is not appealable unless it disposes of all claims as to all parties or judgment is entered in compliance with rule). No judgment has been entered in this case because Plaintiff's First Amendment claim remains. The orders (##50, 64) that Plaintiff seeks to challenge are therefore not appealable and the appeal is frivolous.
IT IS, THEREFORE, HEREBY ORDERED that Plaintiff's in forma pauperis status is revoked for the sake of this appeal, USCA Case Number 12-16328.
IT IS FURTHER ORDERED that Plaintiff's motion for leave to proceed in forma pauperis on appeal (#79) and motion for waiver of appeal filing fee (#79) are DENIED .
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UNITED STATES DISTRICT JUDGE