Opinion
Case No.: 3:16-cv-0405-MMA-JMA
09-01-2017
STEVEN E. RILEY, Plaintiff, v. S. KERNAN, et al., Defendants.
ORDER RESPONDING TO REFERRAL NOTICE
[Doc. No. 58]
Plaintiff Steven E. Riley, a state prisoner proceeding pro se, brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging the Secretary of the California Department of Corrections and Rehabilitation ("CDCR") and fourteen prison officials violated his constitutional rights by subjecting him to random drug testing, charging him with repeated, falsified disciplinary violations, and placing his name on a list of inmates required to participate in Alcoholics Anonymous/Narcotics Anonymous programs, based on his failure to provide a urine sample. On August 10, 2017, the Court dismissed this action. See Doc. No. 53. On August 25, 2017, Plaintiff filed a timely Notice of Appeal. See Doc. No. 55.
The Ninth Circuit Court of Appeals now refers this matter 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." See Doc. No. 58. Rule 24(a)(3) of the Federal Rules of Appellate Procedure provides that a party granted leave to proceed in forma pauperis ("IFP") in district court may continue in that status on appeal unless the district court certifies that the appeal is not taken in good faith, which in this context means that it is frivolous. See Ellis v. United States, 356 U.S. 674, 674-75 (1958). Title 28 of the United States Code, section 1915(a)(3), similarly provides that an appeal may not be taken IFP if the trial court certifies it is not taken in good faith. For purposes of section 1915, an appeal is "frivolous" if it lacks any arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984).
After review of the record herein, the Court concludes that Plaintiff's appeal lacks any arguable basis in law or fact, and thus is considered as not being taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). Accordingly, the Court hereby REVOKES Plaintiff's IFP status. See Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed in forma pauperis on appeal only if appeal would not be frivolous).
The Clerk of the Court is directed to notify the Ninth Circuit Court of Appeals of this Order. See Fed. R. App. P. 24(a)(4).
IT IS SO ORDERED. DATE: September 1, 2017
/s/_________
HON. MICHAEL M. ANELLO
United States District Judge