1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 TINA LOUISE ROBERTS, Case No.: 3:22-cv-01336-RBM-AGS

11 Plaintiff, ORDER DETERMINING THAT IN 12 v. FORMA PAUPERIS STATUS SHOULD NOT CONTINUE ON 13 APPEAL 14 RAUL SANCHEZ, et al., 15 Defendants. [Doc. 15] 16

17 On September 6, 2022, Plaintiff Tina Louise Roberts (“Plaintiff”), proceeding pro 18 se, filed a civil rights action (Doc. 1) accompanied by a Motion for Leave to Proceed In 19 Forma Pauperis (“IFP”) (Doc. 2). The Court granted the Motion for Leave to Proceed IFP 20 and dismissed Plaintiff’s complaint for failure to state a claim upon which relief may be 21 granted pursuant to

(e)(2)(B)(ii) and 1915A(b)(1). (Doc. 3.) Plaintiff 22 subsequently filed a First Amended Complaint (See Doc. 4), and on March 23, 2023, the 23 Court issued an order dismissing the action with prejudice for failure to state a claim (Doc. 24 8). Plaintiff then filed a Notice of Appeal to the Ninth Circuit Court of Appeals. (See Doc. 25 11.) The Ninth Circuit issued a Referral Notice (Doc. 15), referring the matter to this Court 26 for the limited purpose of determining whether IFP status should continue for the appeal 27 or whether the appeal is frivolous or taken in bad faith. See

(a)(3). 28 “A litigant who was previously permitted to proceed IFP may maintain such status 1 on appeal unless the district court certifies that the appeal is not taken in good faith or finds 2 that the party is not otherwise entitled to proceed IFP.” Edrosa v. Chau, No. 19CV88- 3 CAB-DEB,

, at *1 (S.D. Cal. Oct. 6, 2020); see FED. R. APP. P. 4 24(a)(3)(A). Similarly,

(a)(3) provides that “[a]n appeal may not be taken 5 [IFP] if the trial court certifies in writing that it is not taken in good faith.” For purposes 6 of section 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke 7 v. Williams,

(1989); Gardner v. Pogue,

(9th Cir. 8 1977) (stating that an indigent appellant is permitted to proceed IFP on appeal only if the 9 appeal would not be frivolous). 10 Having reviewed the matter, the Court DETERMINES that the appeal is not taken 11 in good faith, and IFP status should not continue on appeal. The Court maintains that 12 Plaintiff’s First Amended Complaint fails to state a claim for the reasons outlined in the 13 Court’s March 23, 2023 order. (See Doc. 8.) The Court was unable to determine the 14 specific factual allegations of Plaintiff’s complaint and, as such, was unable to decipher the 15 misconduct alleged. (Id. at 4); see Ashcroft v. Iqbal,

(2009); Bell Atlantic 16 Corp. v. Twombly,

, 555–56, 570 (2007). Moreover, the Court concluded 17 Plaintiff’s allegations were factually frivolous and failed to state a plausible claim. (Doc. 18 8 at 4); see Hooker v. American Airlines,

(9th Cir. 2002) (revocation 19 of forma pauperis status is appropriate where district court finds the appeal to be frivolous). 20 Therefore, the Court finds that, pursuant to

(a)(3), the appeal would not 21 be taken in good faith, and in forma pauperis status should not continue on appeal. 22 The Court DIRECTS the Clerk to notify Plaintiff and the Ninth Circuit Court of 23 Appeals of this order pursuant to Federal Rule of Appellate Procedure 24(a)(4). Plaintiff 24 may file a motion for leave to proceed IFP on appeal in the Ninth Circuit Court of Appeals 25 within thirty (30) days after service of the notice of this Order as prescribed in the Federal 26 Rules of Appellate Procedure. See FED. R. APP. P. 24(a)(5). 27 / / / 28 / / / 1 IT IS SO ORDERED. 2 ||Dated: April 14, 2023 ala era 4 HONYRUTH BERMUMEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3