HONORABLE TODD W. ROBINSON UNITED STATES DISTRICT COURT
ORDER ON REFERRAL NOTICE REGARDING IN FORMA PAUPERIS STATUS ON APPEAL
(ECF No. 65)
HONORABLE TODD W. ROBINSON UNITED STATES DISTRICT COURT
On January 10, 2022, the Court granted summary judgment in Defendant I. Sanchez's favor and ordered Plaintiff and Appellant Brian Lewis to show cause on or before February 9, 2022, why the claims against Defendant R. Davis should not be dismissed. (See generally ECF No. 54 (“OSC”).) On February 16, 2022, having received no response from Mr. Lewis, the Court dismissed without prejudice his claims against Defendant Davis for failure timely to effect service and failure to prosecute. (See generally ECF No. 56 (the “Feb. 16 Order”).) Judgment was entered the same day. (See generally ECF No. 57.)
The next day, (see ECF No. 58), the undersigned received Mr. Lewis' untimely Motion for Extension of Time to Serve Defendant Davis, dated February 10, 2022. (See generally ECF No. 57 (“Mot.”) at 4-5.) On March 29, 2022, the Court therefore sua sponte vacated its February 16 Order and reviewed Mr. Lewis' Motion on the merits, ultimately denying Mr. Lewis's request for an extension of time to effect service on Defendant Davis and dismissing his claim against Defendant Davis without prejudice for failure timely to effect service and failure to prosecute pursuant to Federal Rules of Civil Procedure 4(m) and 41(b). (See generally ECF No. 59 (the “Mar. 29 Order”).) Again, judgment was entered that same day. (See generally ECF No. 60.)
Mr. Lewis filed his motion on February 10, 2022, (see ECF No. 57 at 4-5), after the February 9, 2022 deadline set by the Court's January 10, 2022 Order to Show Cause. (See generally ECF No. 54.)
On April 25, 2022, Mr. Lewis filed a Notice of Appeal to the United States Court of Appeals for the Ninth Circuit, appealing only the Court's March 29, 2022 dismissal of his claims against Defendant Davis and not the Court's January 10, 2022 summary adjudication of his claims against Defendant Sanchez. (See generally ECF No. 60.) On May 9, 2022, the United States Court of Appeals for the Ninth Circuit referred the matter to the Court “for the limited purpose of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith.” (See ECF No. 65 (citing 28 U.S.C. § 1915(a)(3); Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)).)
“In the absence of some evident improper motive, the applicant's good faith is established by the presentation of any issue that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674 (1958). An action is frivolous “where it lacks an arguable basis either in law or in fact.” See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Legally frivolous claims are those “based on an indisputably meritless legal theory.” See id. at 327. Factually frivolous claims are those premised on “clearly baseless” factual contentions, such as claims “describing fantastic or delusional scenarios.” See id. at 327-28.
Here, the Court dismissed without prejudice Mr. Lewis' claims against Defendant Davis on the grounds that he had failed to establish good cause for his failure to effect service on Defendant Davis for over two years. (See generally Mar. 29 Order.) Although the Court believes that it acted well within its discretion, the Court cannot conclude that this appeal is taken in bad faith or “based on an indisputably meritless legal theory.” See Neitzke, 490 U.S. at 327. Because the Court finds no reason to deny Mr. Lewis the ability to continue to proceed in forma pauperis on appeal, the Court CERTIFIES that this appeal is not frivolous or taken in bad faith. The Clerk of the Court SHALL NOTIFY the Court of Appeals of this order. See Fed. R. App. P. 24(a)(4).
IT IS SO ORDERED.