(PC) Goff v. Gamez

[6] UNITED STATES DISTRICT COURT [7] EASTERN DISTRICT OF CALIFORNIA [9] THOMAS L. GOFF, Case No. 1:15-cv-00937-AWI-EPG (PC) [10] Plaintiff, ORDER RE: IFP STATUS ON APPEAL [11] v. (ECF NO. 98) [12] GAMEZ, et al., ORDER DIRECTING CLERK TO SERVE A 13 COPY OF THIS ORDER ON THE UNITED Defendants. STATES COURT OF APPEALS FOR THE [14] NINTH CIRCUIT [16] 17 By notice entered December 16, 2019, the United States Court of Appeals for the Ninth 18 Circuit referred this matter to the District Court for the limited purpose of determining whether 19 the in forma pauperis status of plaintiff Thomas Goff (“Plaintiff”) should continue for this appeal 20 or whether the appeal is frivolous or taken in bad faith. See 28 U.S.C. § 1915 (a)(3); see also 21 Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). 22 Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v. 23 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir. 24 1968), cert. denied, 393 U.S. 891 (1968); Williams v. Marshall, 795 F.Supp. 978, 978-79 (N.D. 25 Cal. 1992 ). A federal court may dismiss a claim filed in forma pauperis prior to service if it is 26 satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915 (e)(2); see Sully v. Lungren, [27] 842 F.Supp. 1230, 1231 (N.D. Cal. 1994). “A claim is ‘frivolous’ when it is without ‘basis in law 28 or fact,’ and ‘malicious’ when it is ‘filed with the intention or desire to harm another.’” Knapp v. 1 | Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (quoting Andrews vy. King, 398 F.3d 1113 , 1121 (9th 2 | Cir. 2005). A finding of frivolity in this context is equivalent to finding a lack of good faith. Id. 3 | at 1110. A lack of good faith can be inferred where “plaintiffs seek to exploit the court system 4 | solely for delay or to vex defendants.” Vega v. JPMorgan Chase Bank, N.A., 654 F.Supp.2d 5 | 1104, 1121 (E.D. Cal. 2009). 6 The Court does not find that Plaintiff takes the instant appeal in bad faith. This does not 7 || appear to be a situation where “plaintiff[] seek[s] to exploit the court system solely for delay or to g | vex defendants.” Jd. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiff is entitled to proceed in forma pauperis in Appeal No. 19-17494; 11 2. This Order serves as notice to the parties and the United States Court of Appeals 12 for the Ninth Circuit of the finding that Plaintiff is entitled to proceed in forma 13 pauperis for this appeal; and 14 3. The Clerk of Court is directed to serve a copy of this Order on the United States 15 Court of Appeals for the Ninth Circuit. [16] IT IS SO ORDERED. [17] 18 Dated: _ December 17, 2019 [sf ey 19 UNITED STATES MAGISTRATE JUDGE