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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRANDON LEE WOLCOTT,

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Plaintiff,

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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.

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Plaintiff Brandon Lee Walcott is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action brought pursuant to 42 U.S.C. § 1983. On August 17, 2017, the court

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adopted the assigned magistrate judge’s findings and recommendations and dismissed this action

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with prejudice, concluding that all of plaintiff’s claims were either time-barred or failed to state a

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plausible claim for relief. (Doc. Nos. 31, 33.) Plaintiff then filed a notice of appeal on August

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30, 2017. (Doc. No. 35.) On September 11, 2017, the United States Court of Appeals for the

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Ninth Circuit referred the matter to this court for a determination of whether the appeal is

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frivolous or taken in bad faith under Federal Rule of Appellate Procedure 24(a)(3)(A). (Doc. No.

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26.)

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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
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States, 369 U.S. 438, 445 (1962)); see also Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir.

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2002) (if at least one issue or claim is non-frivolous, the appeal must proceed in forma pauperis

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as a whole). A frivolous action is one “lacking [an] arguable basis in law or in fact.” Franklin v.

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Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984). “[T]o determine that an appeal is in good faith, a

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court need only find that a reasonable person could suppose that the appeal has some merit.”

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Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000).

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Here, the court dismissed a number of plaintiff’s claims on the ground that they are barred

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by the applicable statute of limitations, a conclusion that plaintiff does not contest. (Doc. No. 32.)

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Plaintiff focuses his appeal on whether his claim for violation of his rights to freely exercise his

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religion under the First Amendment and RLUIPA stated a plausible claim for relief. (Doc. No.

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35.) In his appeal, plaintiff does not identify any legitimate grounds for appeal, summarily

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concluding that the court “failed to protect the federal fundamental right under the United States

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Constitution.” (Id. at 2.) The court can discern no basis for plaintiff’s appeal other than his mere

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disagreement with the court’s ruling, which does not suffice to demonstrate good faith.

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For these reasons:

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1.

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Pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), the court finds that
the appeal was not taken in good faith; and

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Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(B), the Clerk of the

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Court is directed to serve this order on plaintiff and the U.S. Court of Appeals for

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the Ninth Circuit.

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IT IS SO ORDERED.
Dated:

October 2, 2017
UNITED STATES DISTRICT JUDGE

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