McGee v. Alameda County Sheriff Department

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 ANTHONY MCGEE, Case No. 24-cv-00949-JD 8 Plaintiff, ORDER REVOKING PLAINTIFF’S IN 9 v. FORMA PAUPERIS STATUS 10 ALAMEDA COUNTY SHERIFF DEPARTMENT, — 11 — Defendant. — 12 — 13 In Anthony McGee’s pending appeal, the Ninth Circuit made a limited referral back to this 14 Court to determine whether a prior grant of in forma pauperis (IFP) status should continue, or 15 whether the appeal is frivolous or taken in bad faith. Dkt. No. 37. 16 An indigent party who cannot afford the expense of pursuing an appeal may file a motion 17 for leave to proceed in forma pauperis. Fed. R. App. P. 24(a); 28 U.S.C. § 1915 (a)(1). Pursuant 18 to Federal Rule of Appellate Procedure 24(a), “a party to a district-court action who desires to 19 appeal in forma pauperis must file a motion in the district court.” Fed. R. App. P. 24(a). The 20 party must attach an affidavit that (1) shows in detail “the party’s inability to pay or to give 21 security for fees and costs,” (2) “claims an entitlement to redress,” and (3) “states the issues that 22 the party intends to present on appeal.” Id. But even if a party provides proof of indigence, “[a]n 23 appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in 24 good faith.” 28 U.S.C. § 1915 (a)(3). An appeal is in “good faith” where it seeks review of any 25 issue that is “non-frivolous.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). 26 An issue is “frivolous” if it has “no arguable basis in fact or law.” O’Loughlin v. Doe, 920 F.2d 27 614, 617 (9th Cir. 1990). 1 McGee’s complaint alleged unlawful arrest and “assault[] [by Alameda County deputies] 2 || without reasonable suspicion or probable cause,” in violation of 42 U.S.C. § 1983 . Dkt. No. 1. 3 According to the complaint, McGee was subsequently charged with resisting arrest. Id. 37 . The 4 || Court dismissed the complaint with leave to amend because McGee had not alleged the 5 disposition of the resisting arrest charge or the status of the criminal case. Dkt. No. 28 (citing 6 Turner vy, Alberto, No. 3:20-cv-02980-JD, 2021 WL 254447 , at *3 (N.D. Cal. Jan. 26, 2021)). The 7 complaint also did not plausibly allege facts indicating that he suffered a civil rights deprivation as 8 the result of a policy, custom, or practice of defendant. Jd. McGee was given an opportunity to 9 file an amended complaint, but did not amend. The case was then dismissed without prejudice 10 under Federal Rule of Civil Procedure 41(b). Dkt. No. 33. 11 In these circumstances, revocation of IFP status is warranted. McGee did not present a 12 || non-frivolous claim despite ample opportunity to do so. The Clerk is requested to forward this 13 order to the Ninth Circuit in Case No. 24-7593. IT IS SO ORDERED. 3 15 Dated: January 10, 2025 5 JAMESPONATO. nited tates District Judge — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —