October 21, 2013
Sergio Cortez Benitez, Plaintiff,
Joseph M. Arpaio, et al., Defendants.
ROBERT C. BROOMFIELD, Senior District Judge.
Plaintiff filed this civil rights action pursuant to the Americans with Disabilities Act (ADA). (Doc. 12.) Defendant Maricopa County filed a Motion to Dismiss for failure to exhaust administrative remedies and for failure to state a claim. (Doc. 27.) The Court granted the Motion to Dismiss for failure to exhaust administrative remedies and terminated the action. (Doc. 33.) Plaintiff filed a Notice of Appeal. (Doc. 35.)
The United States Court of Appeals for the Ninth Circuit issued a Referral Notice to this Court for determination whether in forma pauperis status should be revoked because the appeal is frivolous or taken in bad faith. (Doc. 37.) Under 28 U.S.C. § 1915(a)(3), "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." "Not taken in good faith" means "frivolous." See Ellis v. United States, 356 U.S. 674, 674-75 (1958); Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (indigent appellant permitted to proceed IFP on appeal only if appeal would not be frivolous). For a party who was permitted to proceed in forma pauperis in the district court, if the district court determines that an appeal is not taken in good faith, it must state the reasons for the finding. Fed. R. App. P. 24(a)(3)(A).
As to the Motion to Dismiss and exhaustion of administrative remedies, the Court noted that Plaintiff filed grievance #11-04275 on June 13, 2011, raising the issues of the denial of the cane and the subsequent fall-the same issues raised in the Second Amended Complaint. (Doc. 33; ref. Doc. 27-2 at 3.) This grievance was deemed resolved. The resolution, which Plaintiff signed on June 23, 2011, appears to state "will get walker for [illegible]. Show them your extra items stip for a wheelchair for court. Mr. Benites you had a CT & MRI done at the hospital emergency [illegible] your back CT & x-ray were negative at the hospital." (Doc. 27-2 at 3.)
The Court noted that the issue for purposes of the exhaustion of administrative remedies was whether this resolution constituted a grant of relief or partial relief. (Doc. 33 at 7, citing Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010).) The Court found on the particular facts of the case that it did not because Plaintiff submitted a later grievance on the same matter, which noted the prior resolution; Plaintiff then determined that the matter was not resolved. Plaintiff subsequently failed to pursue the issue through the final grievance step. ( Id. )
The Court finds that the appeal is not frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3).
IT IS ORDERED that the Court declines to revoke Plaintiff's in forma pauperis status for the appeal.