Hammler v. Hernandez
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court reviewed a referral from the Ninth Circuit to determine if the plaintiff's interlocutory appeal of a denied Rule 60(b) motion should proceed in forma pauperis. The court certified that the appeal was not taken in good faith because the underlying motion was untimely and meritless, thereby denying IFP status for the appeal.
| What the court decided | The model |
|---|---|
Certification that the appeal is not taken in good faith (denial of IFP status on appeal)“Accordingly, the Court CERTIFIES that this current IFP appeal would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3).” | agree with court The court correctly applied the standard from Neitzke v. Williams and 28 U.S.C. § 1915(a)(3). The order recites that the Rule 60(b) motion was filed eight months after the one-year deadline set by Rule 60(c)(1), making it untimely. It further notes the supporting evidence was irrelevant. An appeal based on a motion that is clearly untimely and lacks merit lacks an arguable basis in law or fact, thus meeting the definition of frivolous. The certification is supported by the record recited in the order. |
The order itself: sound — The order is procedurally correct and substantively sound. It accurately identifies the legal standard for IFP appeals, applies the facts (untimeliness of the Rule 60 motion and irrelevance of evidence) to that standard, and reaches the correct conclusion that the appeal is frivolous. It cites the necessary Supreme Court and Ninth Circuit authorities.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No.: 18cv259-CAB-MDD 12 Plaintiff, ORDER DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS ON APPEAL [Doc. No. 103] 14 J. HERNANDEZ, et al., 15 Defendant. 16 17 Plaintiff Allen Hammler (“Plaintiff”), a state prisoner proceeding pro se and in 18 forma pauperis, filed his complaint on February 2, 2018, pursuant to 42 U.S.C. §1983. 19 [Doc. No. 1.] On December 21, 2020, this Court issued an order granting Defendants’ 20 motion for terminating sanctions based on Plaintiff’s failure to participate in his 21 depositions, and dismissed the complaint with prejudice. [Doc. No. 89.] Judgment was 22 entered accordingly. [Doc. No. 90.] On January 11, 2021, Plaintiff filed a Notice of 23 Appeal to the Ninth Circuit Court of Appeals. [Doc. No. 91.] On April 16, 2021, the 24 appeal was dismissed. [Doc. No. 97.] 25 On August 26, 2022, Plaintiff filed a motion for reconsideration pursuant to Rule 26 60(b) of this Court’s order granting the motion for terminating sanctions. [Doc. No. 98.] 27 On September 2, 2022, this Court issued an order denying the motion for reconsideration 28 on that grounds that it was untimely and without merit. [Doc. No. 99.] On October 7, 1 2022, Plaintiff filed a Notice of Interlocutory Appeal to the Ninth Circuit on this Court’s 2 Order denying the motion for reconsideration. [Doc. No. 100.] 3 On October 17, 2022, the Ninth Circuit Court of Appeals issued a Referral Notice, 4 referring the matter to this Court for the limited purpose of determining whether in forma 5 pauperis status should continue for this appeal or whether the appeal is frivolous or taken 6 in bad faith. [Doc. No. 103.] 7 A litigant who was previously permitted to proceed IFP may maintain such status 8 on appeal unless the district court certifies that the appeal is not taken in good faith or 9 finds that the party is not otherwise entitled to proceed IFP. See Fed. R. App. P. 10 24(a)(3)(A). Similarly, 28 U.S.C. § 1915(a)(3) provides that “[a]n appeal may not be 11 taken [IFP] if the trial court certifies in writing that it is not taken in good faith.” For 12 purposes of section 1915, an appeal is frivolous if it lacks any arguable basis in law or 13 fact. Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989); Gardner v. Pogue, 558 F.2d 14 548, 550 (9th Cir. 1977) (stating that an indigent appellant is permitted to proceed IFP on 15 appeal only if the appeal would not be frivolous). 16 Here, the Court’s order granting the Defendants’ motion for terminating sanctions 17 and dismissing the case was issued on December 21, 2020. [Doc. No. 89.] Plaintiff’s 18 Rule 60 motion, which is brought under reason (2) – newly discovered evidence—was 19 not filed until August 26, 2022 – eight months after the one-year deadline. See 20 Fed.R.Civ.P. 60(c)(1). Therefore, Plaintiff’s motion was untimely. In addition, the 21 document that Plaintiff submitted in support of the motion for reconsideration was 22 irrelevant and not a basis for Rule 60 relief. [See Doc. No. 99 at 2-3.] Therefore, 23 Plaintiff’s appeal of the motion for reconsideration is frivolous. See Neitzke, 490 U.S. at 24 327. 25 Accordingly, the Court CERTIFIES that this current IFP appeal would not be 26 taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). The Court DIRECTS the 27 Clerk to notify Plaintiff and the Ninth Circuit Court of Appeals of this order pursuant to 28 Federal Rule of Appellate Procedure 24(a)(4). Plaintiff may file a motion for leave to 1 || proceed IFP on appeal in the Ninth Circuit Court of Appeals within thirty (30) days after 2 || service of the notice of this Order as prescribed in the Federal Rules of Appellate 3 Procedure. See Fed. R. App. P. 24(a) (5). 4 IT IS SO ORDERED. 5 ||Dated: October 20, 2022 € □ 6 Hon. Cathy Ann Bencivengo 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28