Opinion
No. CV 07-198 TUC DCB.
February 8, 2010
ORDER
Plaintiff proceeds here in forma pauperis, and generally may proceed on appeal in forma pauperis, unless the Court finds the appeal is not taken in good faith. See 28 U.S.C. 1915(a)(3) and FRAP 24(a). In the absence of some evident improper motive, good faith is shown by the presentation of any issue which is not plainly frivolous. Gilbert v. United States, 278 F.2d 61, 62 (9th Cir. 1960); Ellis v. United States, 356 U.S. 674, 674 (1958).
Upon the filing of an appeal where the Plaintiff is proceeding in forma pauperis, the Court automatically considers whether the appeal is taken in good faith. See 28 U.S.C. 1915(a)(3).
Here, Plaintiff is attempting to appeal an interlocutory Order issued by this Court denying reconsideration of the summary judgment it granted on some claims based on a well established rule of law, Edwards v. Balisok, 502 U.SA. 641 (1997), which prohibits using 42 U.S.C. § 1983 as a basis for challenging a rule violation such as the one challenged here by the Plaintiff. The Court considered the question three times, and denied further reconsideration of the question on January 12, 2010. The Court explained that there was no manifest error of law or fact or newly discovered evidence to support reconsideration.
On February 3, 2010, Plaintiff filed the Notice of Appeal of the Court's Order denying reconsideration. There is no basis for reconsideration of the question, and the appeal is frivolous. Additionally, this is an interlocutory appeal because the Plaintiff seeks to appeal a ruling that is not the final ruling in this litigation. Except under rare circumstances interlocutory appeals must be avoided to prevent piecemeal appeals. Here, an interlocutory appeal is not appropriate. See 28 U.S.C. § 1292 (setting out provisions for interlocutory decisions). If it appears from the record that the order sought to be reviewed is not appealable, the conclusion is warranted that the appeal is not taken in good faith. Javor v. Brown, 295 F.2d 60, 61 (9th Cir. 1961). Here, the Order denying the motion to reconsider is not appealable; the Order granting summary judgment in part under Balisok, is not appealable. There can be no other conclusion, except that the appeal is not taken in good faith.
Accordingly,
IT IS ORDERED that after a review of the case, the Court finds the appeal is NOT TAKEN IN GOOD FAITH and Plaintiff may not proceed in forma pauperis. IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order to the Clerk of the Court for the Ninth Circuit Court of Appeals.