Opinion
3:22-cv-05526-RJB-SKV
07-17-2023
EDWARD J. STEINER, Plaintiff, v. BRENT KEMPSTER, et al.,, Defendants.
ORDER ON REFERRAL NOTICE AND REVOKING IN FORMA PAUPERIS STATUS
ROBERT J. BRYAN, UNITED STATES DISTRICT JUDGE
This matter comes before the Court on the July 13, 2023 Referral Notice from the Ninth Circuit Court of Appeals. Dkt. 50. The Court has considered the referral and remaining record. It is fully advised.
As is relevant here, in this case, the Plaintiff, a pro se prisoner, alleges that Defendant Brent Kempster, a police officer with the La Push Police Department, used excessive force against him contrary to his Fourth Amendment rights when detaining him on the Quileute Tribe Reservation. Dkt. 7. The Plaintiff was granted leave to proceed in forma pauperis (“IFP”). Dkt. 4. On May 10, 2023, a Report and Recommendation of U.S. Magistrate Judge S. Kate Vaughan was filed, recommending that the Plaintiff's case be dismissed for lack of subject matter jurisdiction and all pending motions be stricken as moot. Dkt. 44. On June 22, 2023, the Report and Recommendation was adopted over the Plaintiff's objections. Dkt. 47. The Plaintiff filed a notice of appeal of the order adopting the Report and Recommendation. Dkt. 48.
In the pending Referral Notice, the Ninth Circuit Court of Appeals has referred this case to this Court for the limited purpose of determining whether Plaintiff's IFP status should continue for his appeal “or whether the appeal is frivolous or taken in bad faith.” Dkt. 50 (citing Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)).
The Plaintiff's IFP status should be revoked for purposes of this appeal. As stated in the Order adopting the Report and Recommendation, the federal courts do not have jurisdiction over the Plaintiff's claims. The appeal is frivolous and the Plaintiff's IFP status should not continue.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.