1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN DEVERICK LEWIS, Case No.: 19-CV-1060 TWR (WVG) CDCR #J-49028 12 ORDER ON REFERRAL NOTICE Plaintiff, 13 REGARDING IN FORMA PAUPERIS v. STATUS ON APPEAL 14

R. DAVIS and I. SANCHEZ, 15 (ECF No. 65) Defendants. 16

17

18 On January 10, 2022, the Court granted summary judgment in Defendant I. 19 Sanchez’s favor and ordered Plaintiff and Appellant Brian Lewis to show cause on or 20 before February 9, 2022, why the claims against Defendant R. Davis should not be 21 dismissed. (See generally ECF No. 54 (“OSC”).) On February 16, 2022, having received 22 no response from Mr. Lewis, the Court dismissed without prejudice his claims against 23 Defendant Davis for failure timely to effect service and failure to prosecute. (See generally 24 ECF No. 56 (the “Feb. 16 Order”).) Judgment was entered the same day. (See generally 25 ECF No. 57.) 26 / / / 27 / / / 28 / / / 1 The next day, (see ECF No. 58), the undersigned received Mr. Lewis’ untimely 2 Motion for Extension of Time to Serve Defendant Davis, dated February 10, 2022.1 (See 3 generally ECF No. 57 (“Mot.”) at 4–5.) On March 29, 2022, the Court therefore sua sponte 4 vacated its February 16 Order and reviewed Mr. Lewis’ Motion on the merits, ultimately 5 denying Mr. Lewis’s request for an extension of time to effect service on Defendant Davis 6 and dismissing his claim against Defendant Davis without prejudice for failure timely to 7 effect service and failure to prosecute pursuant to Federal Rules of Civil Procedure 4(m) 8 and 41(b). (See generally ECF No. 59 (the “Mar. 29 Order”).) Again, judgment was 9 entered that same day. (See generally ECF No. 60.) 10 On April 25, 2022, Mr. Lewis filed a Notice of Appeal to the United States Court of 11 Appeals for the Ninth Circuit, appealing only the Court’s March 29, 2022 dismissal of his 12 claims against Defendant Davis and not the Court’s January 10, 2022 summary 13 adjudication of his claims against Defendant Sanchez. (See generally ECF No. 60.) On 14 May 9, 2022, the United States Court of Appeals for the Ninth Circuit referred the matter 15 to the Court “for the limited purpose of determining whether in forma pauperis status 16 should continue for this appeal or whether the appeal is frivolous or taken in bad faith.” 17 (See ECF No. 65 (citing

(a)(3); Hooker v. Am. Airlines,

, 18 1092 (9th Cir. 2002)).) 19 “In the absence of some evident improper motive, the applicant’s good faith is 20 established by the presentation of any issue that is not plainly frivolous.” Ellis v. United 21 States,

(1958). An action is frivolous “where it lacks an arguable basis either 22 in law or in fact.” See Neitzke v. Williams,

(1989). Legally frivolous 23 claims are those “based on an indisputably meritless legal theory.” See

. 24 Factually frivolous claims are those premised on “clearly baseless” factual contentions, 25 such as claims “describing fantastic or delusional scenarios.” See

at 327–28. 26 27 28 1 Mr. Lewis filed his motion on February 10, 2022, (see ECF No. 57 at 4–5), after the February 9, 2022 1 Here, the Court dismissed without prejudice Mr. Lewis’ claims against Defendant 2 Davis on the grounds that he had failed to establish good cause for his failure to effect 3 service on Defendant Davis for over two years. (See generally Mar. 29 Order.) Although 4 Court believes that it acted well within its discretion, the Court cannot conclude that 5 || this appeal is taken in bad faith or “based on an indisputably meritless legal theory.” See 6 || Neitzke,

. Because the Court finds no reason to deny Mr. Lewis the ability 7 || to continue to proceed in forma pauperis on appeal, the Court CERTIFIES that this appeal 8 |/is not frivolous or taken in bad faith. The Clerk of the Court SHALL NOTIFY the Court 9 ||of Appeals of this order. See Fed. R. App. P. 24(a)(4). 10 IT IS SO ORDERED. 11 Dated: June 1, 2022 b | oD (2 re Honorable Todd W. Robinson 13 United States District Court 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28