Opinion
Case No. 2:15-CV-2082 JCM (VCF)
11-25-2019
VICTOR TAGLE, Plaintiff(s), v. STATE OF NEVADA, Defendant(s).
ORDER
Presently before the court is the matter of Tagle v. State of Nevada et al., case number 2:15-cv-02082-JCM-VCF.
On November 21, 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."
I. Background
On October 30, 2015, plaintiff Victor Tagle ("Tagle") filed an application to proceed in forma pauperis and a complaint, alleging a litany of constitutional claims including violations of, inter alia, the Equal Protection Clause, Due Process Clause, Eighth Amendment, and First Amendment. (ECF No. 1, 1-1). The court granted the application to proceed in forma pauperis; screened the complaint; and allowed a due process claim, two retaliation claims, and an outgoing mail violation claim to proceed. (ECF Nos. 7, 18).
The defendants who remained in the case after the court's screening moved for summary judgment on August 22, 2019. (ECF No. 91). The court granted the defendants' motion on October 24, 2019, and dismissed Tagle's claims. (ECF No. 102). Tagle appealed. (ECF No. 104).
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.
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 October 23, 2019, order granting defendants' motion for summary judgment (ECF No. 102), 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. As to count 16 against defendant Fajota, which alleged retaliation, Tagle failed to exhaust his administrative remedies. Id. at 6-8. Tagle's daily transaction summary expressly belies his due process claim against Fajota. Id. at 8-9. Finally, Tagle failed to adduce evidence to support his outgoing mail violation claim against defendant Salazar. Id. at 9-10. Thus, Tagle's appeal is frivolous.
The court therefore revoked Tagle's in forma pauperis status.
IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Tagle's in forma pauperis status is REVOKED.
DATED November 25, 2019.
/s/ James C. Mahan
UNITED STATES DISTRICT JUDGE