Cooper v. Paramo
- Proceeding
- district
- Area
- civil
- Panel
- Anthony J. Battaglia (author)
Analysis
The Ninth Circuit referred the case to the District Court to determine if the plaintiff's appeal was frivolous or taken in bad faith for the purpose of continuing in forma pauperis (IFP) status. The Court concluded the appeal lacked an arguable basis in law or fact and revoked the plaintiff's IFP status.
| What the court decided | The model |
|---|---|
Plaintiff's in forma pauperis (IFP) status for the appeal is revoked.“Accordingly, the Court hereby REVOKES Plaintiff's IFP status.” | agree with court The order is a limited referral order. The court applies the standard from Neitzke v. Williams and Franklin v. Murphy to determine if the appeal is frivolous. The court concludes the appeal lacks an arguable basis in law or fact. While the order does not detail the specific legal arguments of the appeal, it recites the procedural history (dismissal for want of prosecution and denial of reconsideration) which suggests the appeal is likely directed at the dismissal. Given the procedural posture, the court's conclusion that the appeal is frivolous is a defensible application of the law, though the specific reasoning for why the appeal lacks merit is not fully elaborated in this short order. |
The order itself: sound with gaps — The order correctly identifies the legal standard for revoking IFP status on appeal (frivolousness) and cites the appropriate Supreme Court and Ninth Circuit authorities. It applies the standard to the record and reaches a conclusion. However, it is a very brief order that does not detail the specific legal deficiencies of the appeal, merely stating the conclusion. This is common for referral orders but leaves the reasoning somewhat opaque.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SYDNEY COOPER, Case No.: 20-cv-01342-AJB-NLS Plaintiff, 12 ORDER RESPONDING TO v. REFERRAL NOTICE 13 DANIEL PARAMO, et al., 14 (Doc. No. 43) Defendants. 15 16 On September 14, 2020, Plaintiff Sydney Cooper, currently incarcerated at the 17 Richard J. Donovan Correctional Facility and proceeding pro se and in forma pauperis, 18 filed an amended complaint against Daniel Paramo, California Department of Corrections 19 and Rehabilitation (“CDCR”), and various other CDCR staff pursuant to 42 U.S.C. § 1983. 20 (See Doc. No. 7.) On October 1, 2020, the Court (1) dismissed Plaintiff’s claims and some 21 of Defendants for failure to state a claim and as frivolous pursuant to 28 U.S.C. §§ 22 1915(e)(2) and 1915A(b); and (2) directing U.S. Marshal to effect service on Defendants 23 Romero and Godinez. (See Doc. No. 8.) On November 17, 2021, the Court issued a Notice 24 of Hearing regarding Dismissal for Want of Persecution pursuant to Federal Rule of Civil 25 Procedure 4(m), with the hearing set for December 13, 2021. (Doc. No. 30.) On December 26 13, 2021, the Court held the 4(m) hearing, at which no parties appeared. (See Doc. No. 32.) 27 As such, the Court ordered the case dismissed without prejudice. (Id.) Plaintiff thereafter 28 filed a motion for reconsideration on April 27, 2023, arguing the Court erred by dismissing 1 || his case without prejudice because he served Godinez and Romero on December 12, 2021, 2 day before the 4(m) hearing. (Doc. No. 37.) Because Plaintiff did not explain why he 3 || failed to attend the 4(m) hearing and failed to establish any of the three prongs that would 4 || entitle him to reconsideration, the Court denied his motion on May 4, 2023. (See Doc. No. 5 On June 20, 2023, Plaintiff filed a Notice of Appeal. (See Doc. No. 40.) 6 The United States Court of Appeals for the Ninth Circuit now refers this matter for 7 || the “limited purpose of determining whether in forma pauperis status should continue for 8 ||this appeal or whether the appeal is frivolous or taken in bad faith.” (See Doc. No. 43.) 9 24(a)(3) of the Federal Rules of Appellate Procedure provides that a party granted 10 leave to proceed in forma pauperis (“IFP’’) in district court may continue in that status on 11 || appeal unless the district court certifies that the appeal is not taken in good faith, which in 12 ||this context means that it is frivolous. See Ellis v. United States, 356 U.S. 674, 674-75 13 |/(1958). Title 28, United States Code, section 1915(a)(3) similarly provides that an appeal 14 || may not be taken IFP if the trial court certifies it is not taken in good faith. For purposes of 15 |}section 1915, an appeal is “frivolous” if it lacks any arguable basis in law or fact. See 16 || Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1225 17 || (9th Cir. 1984). 18 After review of the record herein, the Court concludes Plaintiff's appeal lacks any 19 || arguable basis in law or fact, and thus is considered not being taken “in good faith” pursuant 20 28 U.S.C. § 1915(a)(3). Accordingly, the Court hereby REVOKES Plaintiff's IFP 21 ||status. See Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is 22 permitted to proceed IFP on appeal only if appeal would not be frivolous). The Clerk of 23 || Court is DIRECTED to notify the Ninth Circuit Court of Appeals of this Order. See Fed. 24 ||R. App. P. 24(a)(4). 25 IT IS SO ORDERED. 26 || Dated: July 20, 2023 © 27 Hon, Anthony J.Battaglia 28 United States District Judge 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28