Hammler v. Alvarez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No.: 18-cv-0326-AJB-WVG 12 Plaintiff, ORDER RESPONDING TO NOTICE 13 v. OF REFERRAL 14 J. ALVAREZ, et al., 15 Defendants. 16 17 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se in an action against 18 several correctional officers under 42 U.S.C. § 1983 (“Defendants”). (Doc. No. 1.) On 19 April 25, 2018, this Court granted Plaintiff’s motion to proceed In Forma Pauperis (“IFP”) 20 (Doc. No. 5.) On September 10, 2018, Defendants filed a motion to declare Plaintiff a 21 vexatious litigant, revoke Plaintiff’s IFP status, and require posting of security. (Doc. No. 22 20.) On February 12, 2019, the Magistrate Judge issued a Report and Recommendation 23 (“R&R”), recommending the Court deny the motions to revoke Plaintiff’s IFP status, and 24 require a posting of security, but grant the motion to declare Plaintiff a vexatious litigant. 25 (Doc. No. 55.) Plaintiff filed objections to the Magistrate Judge’s R&R, and on August 13, 26 2019, this Court issued an order adopting the Magistrate Judge’s R&R and declaring 27 Plaintiff a vexatious litigant subject to a pre-filing order. (Doc. Nos. 60, 63.) 28 On September 16, 2019, Plaintiff filed a Notice of Appeal from the “order declaring 1 Plaintiff a vexatious litigant subject to pre-filing order.” (Doc. No. 66.) On September 27, 2 2019, the Ninth Circuit referred the matter to this Court to determine within 21 days 3 “whether in forma pauperis status should continue for this appeal or whether the appeal is 4 frivolous or taken in bad faith.” (Id.) 5 A district court may revoke the appellant’s IFP status by certifying that an appeal 6 would not be taken in “good faith.” See 28 U.S.C. § 1915(a)(3). The good faith test does 7 not require a preliminary showing of any particular degree of merit. In the absence of some 8 evident improper motive, the applicant’s good faith is established by the presentation of 9 any issue on appeal that is not plainly frivolous. See Farley v. United States, 354 U.S. 521, 10 522–23 (1957). Thus, the request of an indigent for leave to appeal in forma pauperis may 11 be denied only if the issues raised are so frivolous that the appeal would be dismissed in 12 the case of a nonindigent litigant. See Ellis v. United States, 356 U.S. 674, 675 (1958) (per 13 curiam); Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977). 14 A claim or action is frivolous where it lacks an arguable basis in law or where a 15 defense is obvious on the face of the complaint. See Neitzke v. Williams, 490 U.S. 319, 325 16 (1989); Franklin v. Murphy, 745 F.2d 1221, 1228–29 (9th Cir. 1984). A complaint or 17 appeal lacks an arguable basis in law only if controlling authority requires a finding that 18 the facts alleged fail to establish even an “arguable legal claim.” See Guti v. INS, 908 F.2d 19 495, 496 (9th Cir. 1990) (citation omitted). While the facts alleged should generally be 20 accepted as true, clearly baseless, “fanciful,” “fantastic,” or “delusional” factual 21 contentions may be dismissed as frivolous under section 1915. See Denton v. Hernandez, 22 504 U.S. 25, 32 (1992). A complaint or appeal may not, however, be dismissed as frivolous 23 merely because the allegations are unlikely. Id. at 33. 24 After reviewing the entire record, the Court finds that Plaintiff’s appeal lacks any 25 arguable basis in law or fact and therefore is considered as not being taken “in good faith” 26 pursuant to 28 U.S.C. § 1915(a)(3). See Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 27 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not 28 be frivolous.) Here, the Court designated Plaintiff as a vexatious litigant because Plaintiff 1 filed 50 separate cases against various prison officials and in various California courts 2 since 2007—nine of which were decided adversely against Plaintiff. (Doc. No. 20-2, Ex. 3 || 11.) Moreover, Plaintiff was given an opportunity to object to the R&R and the Magistrate 4 || Judge’s findings that Plaintiff is a vexatious litigant. (Doc. No. 60.) In his objections to the 5 R&R, Plaintiff failed to object substantively to the findings of the Magistrate Judge, and 6 ||instead argued generally that his lawsuits are “what rights are for” and “one who is weak 7 ||can stand behind them and scream at Giants to fear God, County, and Constitution.” (Doc. 8 60 at 3.) For these reasons, the Court finds that Plaintiff's IFP status should not be 9 || maintained on appeal. 10 The Clerk of Court is directed to notify the Ninth Circuit Court of Appeals of this 11 |}Order. See Fed. R. App. P. 24(a)(4). 12 13 || IT ISSO ORDERED. 14 Dated: October 15, 2019 © ¢ Hon. Anthony J. attaglia 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28