Johnson v. Brady et al

Filing 97

ORDER: Plaintiff's IFP status is revoked for this appeal. The Clerk shall transmit this order to the Ninth Circuit Court of Appeals. (re: 9CCA 16-15420) Signed by Judge David G Campbell on 3/25/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Derrick Johnson,

No. CV-14-01875-PHX-DGC
Plaintiff,

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v.

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ORDER

Robert Brady, et al.,

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Defendants.

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Although this case is currently on appeal, the Court of Appeals referred this matter

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to the Court for the limited purpose of determining whether Plaintiff’s in forma pauperis

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(“IFP”) status should continue for the appeal, or whether the appeal is frivolous or taken

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in bad faith. Doc. 95. For the following reasons, the Court will revoke Plaintiff’s IFP

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status for the appeal.

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On January 28, 2015, the Court dismissed Plaintiff’s state law claims against

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Defendants Rogers, Puchek, Brady, Newton, and the Town of Quartzsite for failure to

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comply with the state’s notice of claim statute. Doc. 37 at 4-5. The Court dismissed

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claims against Defendant Vederman based on absolute immunity and Plaintiff’s failure to

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allege facts to support claims for actions that are not protected by immunity. Id. at 5-6.

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The Court dismissed Plaintiff’s section 1983 claims against Defendants La Paz County,

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La Paz County Board of Supervisors, and the Town of Quartzsite for failure to state the

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legal theory under which the municipal defendants could be held liable, and for failure to

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allege sufficient facts. Id. at 6-7. The Court dismissed Plaintiff’s state law claims against

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Defendants La Paz County and La Paz County Board of Supervisors based on the actions

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of its employees because neither of the two agents was responsible for the alleged torts.

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Id. at 8-10. The Court dismissed Plaintiff’s section 1983 unreasonable search and seizure

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claim against Defendants Brady and Newton because Plaintiff’s allegations do not show

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that the officers acted without reasonable suspicion. Id. at 10-11. The Court dismissed

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Plaintiff’s section 1983 malicious prosecution claim against Defendants Rogers, Puchek,

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Brady, and Newton based on prosecutorial immunity (Rogers), for lack of state action

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(Puchek), and for failure to state any allegations related to the prosecution beyond the

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initial decision to arrest (Brady and Newton). Id. at 11-14. Finally, the Court dismissed

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Plaintiff’s equal protection claim against all Defendants for failure to allege any facts that

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would support a “class of one” claim. Id. at 14. The Court granted Plaintiff leave to

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amend his federal and state law claims against Defendants La Paz County, La Paz County

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Board of Supervisors, the Town of Quartzsite, Brady, and Newton, and leave to amend

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his state law claims against Defendant Puchek. Id. at 14-16. Plaintiff’s only claim that

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survived was his section 1983 unreasonable arrest claim against Defendants Brady and

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Newton. Id. at 14.

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On June 17, 2015, the Court again dismissed all of Plaintiff’s claims except his

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section 1983 false arrest claim and his civil conspiracy claim against Defendants Brady

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and Newton. Doc. 65 at 5-6. This time, however, the Court dismissed Plaintiff’s other

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claims with prejudice because he “re-pled claims the Court dismissed with prejudice” and

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“failed to cure the deficiencies identified in the Court’s earlier order.” Id. at 9. The

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Court warned Plaintiff that a failure to prosecute the case would result in dismissal under

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Rule 41(b) of the Federal Rules of Civil Procedure. Id.

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On November 20, 2015, Defendants Brady and Newton filed a motion for

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summary judgment. See Doc. 78. Plaintiff never responded. On February 16, 2016, the

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Court dismissed Plaintiff’s action under Rule 41(b) for failure to prosecute and for failure

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to comply with the Court’s previous orders. Doc. 89 at 2-3. The Court, however,

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dismissed the action without prejudice. Id. at 3. The Clerk entered a judgment of

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dismissal that same day. See Doc. 90. On March 11, 2016, Plaintiff filed a notice of

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appeal. Doc. 91.

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A district court may deny a party IFP status if all claims on appeal are frivolous.

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See 28 U.S.C. § 1915(a)(3); Ellis v. United States, 356 U.S. 674, 674-75 (1958). As

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discussed in the Court’s previous orders, the majority of Plaintiff’s claims were wholly

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without merit. See Docs. 37; 65; 89. Appeal pertaining to any of these claims would be

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frivolous or taken in bad faith. After two rounds of motion practice, Plaintiff was left

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with only two non-frivolous claims – his false arrest claim and civil conspiracy claims

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against Defendants Brady and Newton. Ordinarily this would be sufficient to permit

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Plaintiff to proceed with IFP status on appeal, but Plaintiff failed to prosecute his action

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in direct violation of the Court’s June 17, 2015 order. Plaintiff also failed to respond to

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Defendants’ motion for summary judgment, even after being ordered to do so. Doc. 89.

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As a result, the Court dismissed the claims without prejudice. See Fed. R. Civ. P. 41(b);

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Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005)

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(citations omitted) (recognizing that courts may sua sponte dismiss actions under Rule

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41(b) for a plaintiff’s failure to prosecute or comply with the court’s orders). The Court

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specifically considered the five factors required by the Ninth Circuit before making the

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dismissal decision. Doc. 89 at 3 (citing Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.

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1995)).

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Because the Court dismissed Plaintiff’s claims without prejudice because of his

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repeated failures to follow the rules and comply with Court orders, and his refusal to

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respond to the motion for summary judgment even after being ordered to do so, the Court

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concludes that any appeal of the dismissal would be frivolous.

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IT IS ORDERED:

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Plaintiff’s IFP status is revoked for this appeal.

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The Clerk shall transmit this order to the Ninth Circuit Court of Appeals.

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Dated this 25th day of March, 2016.

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