Opinion
Case No. 2:16-CV-287 JCM (VCF)
11-15-2019
ROY D. MORAGA, Plaintiff(s), v. STEVE WOLFSON, et al., Defendant(s).
ORDER
Presently before the court is the matter of Moraga v. Wolfson et al., case number 2:16-cv-00287-JCM-VCF.
On November 7, 2019, the court received a referral notice from the Ninth Circuit Court of Appeals, referring this matter to the court "for the limited purpose of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith." (ECF No. 24).
I. Background
On February 11, 2016, Moraga filed an application to proceed in forma pauperis and a complaint, generally alleging that his due process rights were violated when the state of Nevada denied as untimely his request for a new genetic marker analysis. (ECF No. 1, 1-1). The court granted the application to proceed in forma pauperis but dismissed the complaint with leave to amend. (ECF Nos. 3, 9). On February 1, 2017, Moraga filed his first amended complaint, alleging that the physical evidence related to his criminal conviction was wrongfully withheld from him. (ECF No. 10).
On January 22, 2019, Magistrate Judge Cam Ferenbach recommended that this action be dismissed with prejudice because Moraga failed to state a claim for relief. (ECF No. 12). On March 4, 2019, the court adopted the report and recommendation and dismissed this action with prejudice. (ECF No. 14). In response, Moraga filed a motion for reconsideration on March 13, 2019. (ECF No. 16).
On July 30, 2019, Moraga filed a notice of appeal (ECF No. 18) as to the court's order adopting the report and recommendation (ECF No. 14). The Ninth Circuit subsequently entered an order on August 21, 2019, directing this court to determine "whether appellant's March 13, 2019 filing falls within those [motions] listed in Federal Rule of Appellate Procedure 4(a)(4) and, if so, whether the motion should be granted or denied." (ECF No. 22). On October 10, 2019, the court (1) found that Moraga's March 13, 2019, motion for reconsideration (ECF No. 16) was timely filed pursuant to Federal Rule of Civil Procedure 60(b), and (2) denied Moraga's motion for reconsideration. (ECF No. 23).
Now, the Ninth Circuit has referred this case to the court for the limited purpose of determining if Moraga's in forma pauperis status should continue for his appeal. (ECF No. 24).
II. Legal Standard
28 U.S.C. § 1915(a)(3) provides that "[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 satisfied when an individual "seeks appellate review of any issue not frivolous." Coppedge v. United States, 369 U.S. 438, 445 (1962). For the purposes of section 1915, an appeal is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A district court may revoke an individual's in forma pauperis status for his appeal if it finds that the appeal would be frivolous. See Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).
III. Discussion
For the reasons set forth in the court's March 4, 2019 order adopting the magistrate judge's recommendation to dismiss this case with prejudice (ECF No. 14), the court finds that any appeal of that order would not be taken in good faith because the issues therein lack any arguable basis in law or fact. The court will therefore revoke Moraga's in forma pauperis status. . . .
IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Moraga's in forma pauperis status is REVOKED.
DATED November 15, 2019.
/s/ James C. Mahan
UNITED STATES DISTRICT JUDGE