1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, No. 1:19-cv-00417-DAD-JLT (PC) 12 Plaintiff, 13 v. ORDER FINDING APPEAL IS NOT FRIVOLOUS AND CONTINUING IN 14 M. OLIVEIRA, FORMA PAUPERIS STATUS 15 Defendant. (Doc. No. 28)

16 17 This action proceeded by way of a first amended complaint (“FAC”) filed by plaintiff 18 Allen Hammler, a state prisoner proceeding pro se and in forma pauperis, on January 23, 2020. 19 (Doc. No. 11.) On February 7, 2020, the assigned magistrate judge screened the FAC and found 20 that it failed to state a cognizable First Amendment retaliation claim because plaintiff did not 21 allege any adverse action. (Doc. No. 12 at 3–5.) Rather than amend his FAC, plaintiff appealed 22 to the Ninth Circuit Court of Appeals on March 2, 2020. (Doc. No. 13.) The Ninth Circuit 23 dismissed plaintiff’s appeal for lack of jurisdiction because the screening order was not a final or 24 appealable order. (Doc. No. 16.) On April 1, 2020, the magistrate judge provided plaintiff 25 another opportunity to amend his complaint (Doc. No. 17), which plaintiff declined and continued 26 to maintain that the February 7, 2020 screening order was incorrect. (Doc. No. 19.) Therefore, 27 on April 24, 2020, the magistrate judge issued findings and recommendations, recommending that 28 plaintiff’s FAC be dismissed for failure both to state a claim and to obey a court order. (Doc No. 1 21 at 2.) These findings and recommendations were adopted by the undersigned on June 4, 2020, 2 and the case was dismissed. (Doc. No. 23 at 2.) 3 Plaintiff subsequently appealed from the dismissal order on June 29, 2020. (Doc. No. 25.) 4 On July 1, 2020, the Ninth Circuit Court referred the matter back to this court for a determination 5 as to whether in forma pauperis status should continue on appeal or whether the appeal was 6 frivolous or taken in bad faith. (Doc. No. 28.) 7 “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it 8 is not taken in good faith.”

(a)(3). “The good faith requirement is satisfied if 9 the appellant seeks review of any issue that is ‘not frivolous.’” Gardner v. Pogue,

, 10 550–51 (9th Cir. 1977) (quoting Coppedge v. United States,

(1962)); see also 11 Hooker v. Am. Airlines,

(9th Cir. 2002) (holding that if at least one issue or 12 claim is non-frivolous, the appeal must proceed in forma pauperis as a whole). An action is 13 frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams,

319, 325 (1989). In other words, the term “frivolous,” as used in § 1915 and when applied to a 15 complaint, “embraces not only the inarguable legal conclusion, but also the fanciful factual 16 allegation.” Id. 17 The undersigned concludes that plaintiff’s appeal is not frivolous. As the screening order 18 explained (Doc. No. 12 at 3), defendant rejected an inmate grievance appeal on the ground that 19 plaintiff had submitted another such appeal within the past fourteen days, in violation of prison 20 regulations. (Doc. No. 11 at 3.) Plaintiff then sent defendant a letter indicating that the second 21 appeal was not subject to the fourteen-day rule because it concerned events that allegedly took 22 place at a different prison. (Id.) Plaintiff also indicated in that letter that if defendant “screened [] 23 out” his inmate grievance again, plaintiff would sue defendant for violating his First Amendment 24 rights. (Id.) Defendant responded in writing by informing plaintiff that the inmate appeal had 25 been forwarded to the other prison, while also noting that “threats contained within appeal 26 documents are reason for rejection” after plaintiff threatened to sue defendant for violating his 27 First Amendment rights. (Doc. No. 11 at 3–6.) While the magistrate judge’s screening order 28 concluded that this chain of events did not amount to an adverse action sufficient to support a wOAOe □□ VOTE OPA VRP MVOC ee POC I er OY VI

1 | retaliation claim, plaintiff's position to the contrary is not completely devoid of any basis in law 2 | orin fact. Moreover, although the screening order also found that defendant’s comment would 3 not chill a person of ordinary firmness from filing future grievances (Doc. No. 12 at 4), the 4 | undersigned finds that plaintiff's assertion to the contrary is likewise not completely devoid of 5 | any basis in law or in fact. 6 Accordingly, plaintiff's in forma pauperis status shall continue on appeal. The Clerk of 7 | the Court is directed to serve a copy of this order on plaintiff, as well as the Ninth Circuit Court of 8 | Appeals. 9 10 IT IS SO ORDERED. ~ oy it | Dated: _ July 7, 2020 LL 1 UNITED STATES DISTRICT JUDGE

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