Wolcott v. Board of Rabbis of Northern and Southern California et al

Filing 39

ORDER Finding Appeal Not Taken in Good Faith 38 , signed by District Judge Dale A. Drozd on 10/2/17. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON LEE WOLCOTT, 12 Plaintiff, 13 14 15 No. 1:14-cv-00936-DAD-JLT (PC) v. ORDER FINDING APPEAL NOT TAKEN IN GOOD FAITH BOARD OF RABBIS OF NO. & SO. CALIFORNIA, et al., (Doc. No. 38) Defendants. 16 17 Plaintiff Brandon Lee Walcott is a state prisoner proceeding pro se and in forma pauperis 18 19 in this civil rights action brought pursuant to 42 U.S.C. § 1983. On August 17, 2017, the court 20 adopted the assigned magistrate judge’s findings and recommendations and dismissed this action 21 with prejudice, concluding that all of plaintiff’s claims were either time-barred or failed to state a 22 plausible claim for relief. (Doc. Nos. 31, 33.) Plaintiff then filed a notice of appeal on August 23 30, 2017. (Doc. No. 35.) On September 11, 2017, the United States Court of Appeals for the 24 Ninth Circuit referred the matter to this court for a determination of whether the appeal is 25 frivolous or taken in bad faith under Federal Rule of Appellate Procedure 24(a)(3)(A). (Doc. No. 26 26.) 27 28 An appeal is taken in good faith if the appellant seeks review of any issue that is not frivolous. Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) (citing Coppedge v. United 1 1 States, 369 U.S. 438, 445 (1962)); see also Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2 2002) (if at least one issue or claim is non-frivolous, the appeal must proceed in forma pauperis 3 as a whole). A frivolous action is one “lacking [an] arguable basis in law or in fact.” Franklin v. 4 Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984). “[T]o determine that an appeal is in good faith, a 5 court need only find that a reasonable person could suppose that the appeal has some merit.” 6 Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000). 7 Here, the court dismissed a number of plaintiff’s claims on the ground that they are barred 8 by the applicable statute of limitations, a conclusion that plaintiff does not contest. (Doc. No. 32.) 9 Plaintiff focuses his appeal on whether his claim for violation of his rights to freely exercise his 10 religion under the First Amendment and RLUIPA stated a plausible claim for relief. (Doc. No. 11 35.) In his appeal, plaintiff does not identify any legitimate grounds for appeal, summarily 12 concluding that the court “failed to protect the federal fundamental right under the United States 13 Constitution.” (Id. at 2.) The court can discern no basis for plaintiff’s appeal other than his mere 14 disagreement with the court’s ruling, which does not suffice to demonstrate good faith. 15 For these reasons: 16 1. 17 18 Pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), the court finds that the appeal was not taken in good faith; and 2. Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(B), the Clerk of the 19 Court is directed to serve this order on plaintiff and the U.S. Court of Appeals for 20 the Ninth Circuit. 21 22 IT IS SO ORDERED. Dated: October 2, 2017 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 2

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