White v. Ruskovish

Full title: ADRIAN JOE WHITE, Plaintiff, v. JONATHAN BETTIS RUSKOVISH, et al.…

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Dec 3, 2015

1:14-cv-01835-AWI-BAM (E.D. Cal. Dec. 3, 2015)

Opinion

1:14-cv-01835-AWI-BAM

12-03-2015

ADRIAN JOE WHITE, Plaintiff, v. JONATHAN BETTIS RUSKOVISH, et al., Defendants.

Appeal No. 15-17313 ORDER REVOKING IN FORMA PAUPERIS STATUS

By notice entered November 30, 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). 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.

Here, Plaintiff is appealing the Court's dismissal of this action for lack of subject matter jurisdiction. Although the Court granted Plaintiff leave to amend, Plaintiff was unable to cure this deficiency. There is no basis for federal jurisdiction in this case, and an appeal of that decision would be frivolous. IFP status should not continue on appeal.

Accordingly, IT IS HEREBY ORDERED that:

1. The appeal is declared frivolous and not taken in good faith;

2. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma pauperis in Appeal No. 15-17313, filed November 23, 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.

IT IS SO ORDERED. Dated: December 3, 2015

/s/_________

SENIOR DISTRICT JUDGE