Opinion
No. CIV S-06-0727 LKK EFB P.
December 7, 2007
ORDER
Plaintiff is a prisoner without counsel seeking relief for civil rights violations. See 42 U.S.C. § 1983. He proceeds without counsel on interlocutory appeal of this court's order adopting the magistrate judge's August 29, 2007, findings and recommendations to deny plaintiff's motion for a preliminary injunction seeking medical treatment. The Ninth Circuit has referred the matter back to the district court for the limited purpose of determining whether the appeal has been taken in good faith. See 28 U.S.C. § 1915(a)(3).
An appeal not taken in good faith is one that is frivolous, meaning the result is obvious or the arguments are wholly without merit. See Cannon v. Hawaii Corp. (In re Hawaii Corp.), 796 F.2d 1139, 1144 (9th Cir. 1986) (quoting Libby, McNeill and Libby v. City National Bank, 592 F.2d 504, 515 (9th Cir. 1978); Jaeger v. Canadian Bank, 327 F.2d 743, 746 (9th Cir. 1964).
The Ninth Circuit will review this case de novo. Llamas v. Butte Cmty. Coll. Dist., 238 F.3d 1123, 1126 (9th Cir. 2001).
By his motion, plaintiff stated that he was in administrative segregation and sought an order directing defendants to (1) provide him with adequate and effective access to his legal materials and any other materials necessary to prosecute this case; (2) explain in detail why he has been placed in administrative segregation; (3) provide plaintiff with outside medical treatment, including a comprehensive medical evaluation and to administer such treatment and medications as are recommended, without delay.
The magistrate judge found that plaintiff had failed to explain his "final decision" not to take medication prescribed to him or what alternative treatment he feels is warranted for his condition; he failed to allege that the treatment he is refusing is inadequate; and he only alleges that the side effects of his prescribed medications are undesirable. The magistrate judge further found that plaintiff had not alleged any facts showing that there is a likelihood he will succeed on the merits of his case and that he requires injunctive relief to avoid irreparable harm.
In his objections to the findings and recommendations, plaintiff stated that he is now housed in the Department of Mental Health. Plaintiff did not show that the magistrate judge overlooked any facts that call the findings into question, and he cannot adduce new evidence on appeal. Nor did plaintiff demonstrate that there was any legal error in the findings and recommendations. Therefore, the outcome of the appeal most likely is a foregone conclusion.
For these reasons, the court finds that plaintiff's appeal is not taken in good faith.
So ordered.