Dowd v. County of Kern et al
Filing
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ORDER Revoking Plaintiff's In Forma Pauperis Status And Certifying Plaintiff's Appeal Is Frivolous, signed by Magistrate Judge Jennifer L. Thurston on 10/16/2012. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT E. DOWD,
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Plaintiff,
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v.
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COUNTY OF KERN, et al.,
Defendants.
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Case No.: 1:12-cv-01063 - LJO - JLT
ORDER REVOKING PLAINTIFF’S IN FORMA
PAUPERIS STATUS AND CERTIFYING
PLAINTIFF’S APPEAL IS FRIVOLOUS
Robert Dowd (“Plaintiff”) is proceeding pro se in this civil action. On September 12, 2012, the
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Court dismissed the amended complaint without prejudice for Plaintiff’s failure to state a cognizable
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claim. Plaintiff filed a notice of appeal on October 11, 2012 (Doc. 14), and the Ninth Circuit requested
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the Court determine “whether in forma pauperis status should continue for this appeal or whether the
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appeal is frivolous or taken in bad faith.” (Doc. 16) (citing 28 U.S.C. § 1915(a)(3); Hooker v.
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American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)). For the following reasons, the Court certifies
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Plaintiff’s appeal is frivolous, and his in forma pauperis status is REVOKED.
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I.
Legal Standard
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Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the trial
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court certifies in writing that it is not taken in good faith.” The good faith standard is an objective one,
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and good faith is demonstrated by when an individual “seeks appellate review of any issue not
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frivolous.” See Coppedge v. United States, 369 U.S. 438, 445 (1962).
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For purposes of 28 U.S.C. § 1915, an appeal is frivolous if it lacks any arguable basis in law or
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fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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II.
Discussion and Analysis
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Plaintiff seeks to appeal the District Court’s decision to dismiss the amended complaint
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“because he was denied due process of law and equal protection of the law by virtue of the fact that he
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had only one opportunity to amend and his case was dismissed without oral argument.” (Doc. 12 at 2).
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In addition, Plaintiff contends “the Court ruled incorrectly” in finding that Plaintiff could not take this
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matter to a jury.
Significantly, Plaintiff was granted an opportunity to amend his complaint and was given
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specific instruction explaining why his complaint was defective. (Doc. 4) He filed his First Amended
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Complaint which the Court screened and found that Plaintiff failed to address the deficiencies noted by
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the Court. (Doc. 8) He was given the opportunity to object to the Findings and Recommendations that
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his amended complaint be dismissed for failure to state a cognizable claim, and did so. (Doc. 9)
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Accordingly, though the Court did not hold a hearing, Plaintiff had an opportunity to be heard.
As Plaintiff notes, he was given the opportunity to amend his complaint prior to the Court’s
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dismissal of the action. Where it is obvious the plaintiff cannot prevail on the facts alleged and further
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amendments would be futile, dismissal for failure to state a claim is proper. Lopez v. Smith, 203 F.3d
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1122, 1130 (9th Cir. 2000). Reviewing the factual allegations in Plaintiff’s amended complaint, the
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Court found Plaintiff again failed to state facts supporting his claims of a conspiracy or that his
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constitutional rights were violated which demonstrated his inability to do so.1 (Doc. 8 at 5-8). In
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addition, the Court determined it lacked jurisdiction under the Rooker/Feldman doctrine to review the
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decision of the state court to suspend Plaintiff from the practice of law. (Doc. 8 at 8-10; Doc. 10 at 5).
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Finally, the Court found Plaintiff was barred by Heck v. Humprhey, 512 U.S. 477, 486-87 (1994), from
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challenging the lawfulness of his arrest given that he had been convicted of the offenses and had not
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demonstrated that his convictions had been set aside. (Doc. 8 at 8-10; Doc. 10 at 5). Therefore, the
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Plaintiff had been an attorney for many years. Thus, it is particularly noteworthy that, when given explicit instruction by
the Court as to what was needed to state a claim of a conspiracy or that his constitutional rights had been violated, Plaintiff
failed to plead facts that would support these claims.
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Court found Plaintiff failed to state cognizable claims, and further amendment was futile. Id.
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III.
Conclusion and Order
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As discussed above, Plaintiff failed to state cognizable claims upon which relief could be
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granted by the Court. Plaintiff’s appeal is frivolous because it “lacks any arguable basis in law or fact.”
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See Neitzke, 490 U.S. at 325. Thus, the Court certifies that Plaintiff’s appeal is frivolous and not taken
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in good faith.
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Accordingly, IT IS HEREBY ORDERED:
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1.
Plaintiff’s in forma pauperis status is REVOKED;
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The Clerk of Court is DIRECTED to notify the Ninth Circuit Court of Appeals that the
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Court certifies, pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate
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Procedure, that Plaintiff’s appeal is frivolous and not taken in good faith.
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IT IS SO ORDERED.
Dated:
October 16, 2012
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:
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