Opinion
1:15-cv-00432-BAM Appeal No. 15-17474
12-23-2015
MANUEL PEREZ, Plaintiff, v. LISA A. SMITTCAMP, Defendant.
ORDER REVOKING IN FORMA PAUPERIS STATUS (Doc. 24)
By notice entered December 22, 2015, the United States Court of Appeals for the Ninth Circuit referred this matter to the District 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. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the District Court finds the appeal to be frivolous).
Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir., cert. denied, 393 U.S. 891 (1968); Williams v. Marshall, 795 F.Supp. 978, 978-79 (N.D. Cal. 1992). A federal court may dismiss a claim filed in forma pauperis prior to service if it is satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2); see Sully v. Lungren, 842 F.Supp. 1230, 1231 (N.D. Cal. 1994). If a plaintiff with in forma pauperis status brings a case without arguable substance in law and fact, the court may declare the case frivolous. Franklin, 745 F.2d at 1227.
On August 21, 2015, the Court screened Plaintiff's pro se complaint and dismissed it with leave to amend. (Doc. 13.) Despite multiple opportunities and extensions of time, Plaintiff failed to file an amended complaint. Accordingly, on November 24, 2015, the Court dismissed this action based on Plaintiff's failure to obey a court order. (Doc. 19.) The Court had warned Plaintiff repeatedly that failure to file an amended complaint would result in dismissal of this action. Plaintiff's appeal of the Court's dismissal, which resulted from Plaintiff's own inaction, is therefore frivolous.
Accordingly, IT IS HEREBY ORDERED that:
1. This matter is declared frivolous;IT IS SO ORDERED.
2. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma pauperis in Appeal No. 15-17474, filed December 3, 2015;
3. Pursuant to Federal Rule of Appellate Procedure 24(a)(4), this Order serves as notice to the parties and the United States Court of Appeals for the Ninth Circuit of the finding that Plaintiff is not entitled to proceed in forma pauperis for this appeal; and
4. The Clerk of the Court is directed to serve a copy of this Order on Plaintiff and the United States Court of Appeals for the Ninth Circuit.
Dated: December 23 , 2015
/s/ Barbara A . McAuliffe
UNITED STATES MAGISTRATE JUDGE