1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3

4 Oscar Perez-Marquez, Case No. 2:23-cv-0938-CDS-BNW

5 Plaintiff District Court’s Response to Ninth Circuit’s Referral Notice 6 v.

[ECF No. 11] 7 Joe Lombardo, et al., 8 Defendants 9 10 The United States Court of Appeals for the Ninth Circuit has referred this matter to me 11 for the limited purpose of determining whether in forma pauperis status should continue for 12 Perez-Marquez’s appeal or whether the appeal is frivolous or taken in bad faith. Referral Notice, 13 ECF No. 11; see also

(a)(3). The appeal does appear to be frivolous on its face 14 because Perez-Marquez is appealing my order affirming the magistrate judge’s recommendation 15 that this case be dismissed (ECF No. 5). I issued that order based on the magistrate judge’s 16 correct determination that Perez-Marquez’s complaint lacks an arguable basis either in law or in 17 fact. Any appeal from that order would not be taken in good faith. Cf. Coppedge v. United States, 369

, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks 19 review of a nonfrivolous issue). 20 However, because no opening brief has been filed, I am unable to fully determine if the 21 appeal is frivolous or not. Neitzke v. Williams,

(1989) (an appeal is frivolous if it 22 lacks any arguable basis in law or fact). Whether that is a sufficient basis to revoke in forma 23 pauperis status under the language of

(a)(3), I leave to the Ninth Circuit to 24 decide. Cf. Hooker v. American Airlines,

(9th Cir. 2002) (“28 U.S.C. § 1915(a) requires 25 in forma pauperis status to be authorized for an appeal as a whole and not on a piecemeal basis 26 by particular claims.”). 1 The Clerk of Court is directed to serve a copy of this response on the parties and the Ninth Circuit Court of Appeals. 3 Dated: September 18, 2023 J, / fb..-—— 5 Crist A D. Silva é Unite States District Judge 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26