Opinion
No. 2:13-cv-0544 CKD P (TEMP)
01-13-2016
TERRANCE VICKERS, Plaintiff, v. WARDEN RICK HILL et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding pro se. The United States Court of Appeals for the Ninth Circuit has referred this matter to the district court for the limited purpose of determining whether plaintiff's in forma pauperis status should continue on appeal.
"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). "In the absence of some evident improper motive, the applicant's good faith is established by the presentation of any issue that is not plainly frivolous." Ellis v. United States, 356 U.S. 674 (1958) (per curiam). See also Coopedge v. United States, 369 U.S. 438, 445 (1962). The standard for determining whether an appeal is frivolous is essentially the same as the standard for determining whether a claim is frivolous - i.e., whether it lacks an arguable basis in law or in fact. Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). As another district court has noted, "it would be inconsistent for a district court to determine that a complaint is too frivolous to be served, yet has sufficient merit to support an appeal in forma pauperis." Russell v. Gilless,870 F. Supp. 204, 206 (W.D. Tenn. 1994).
This court has determined that plaintiff's complaint is frivolous. Specifically, on October 14, 2015, then-Magistrate Judge Dale A. Drozd dismissed this action due to plaintiff's failure to state a cognizable claim for relief. On the same day, the court entered judgment and closed the case. On October 27, 2015, plaintiff filed a motion for reconsideration. On November 10, 2015, the undersigned denied the motion because plaintiff had not explained how he could cure the defects in his complaint. For the same reasons discussed in the court's orders issued on October 14, 2015, and November 10, 2015, the undersigned finds plaintiff's appeal is frivolous and therefore not taken in good faith.
Plaintiff has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636. (Doc. No. 4) --------
Accordingly, IT IS HEREBY ORDERED that:
1. Pursuant to 28 U.S.C. § 1915(a)(3), the court certifies that plaintiff's appeal is not taken in good faith; and
2. The Clerk of the Court shall immediately notify the United States Court of Appeals for the Ninth Circuit of this court's determination. Dated: January 13, 2016
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE ec
vick0544.ifp