Johnson v. Cotta et al
ORDER FINDING Appeal Not Taken in Good Faith signed by District Judge Dale A. Drozd on 5/19/2017. (Sant Agata, S)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 1:16-cv-00082-DAD-JLT (PC)
ORDER FINDING APPEAL NOT TAKEN IN
COTTA, et al.,
Plaintiff, Armah Johnson, is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action filed pursuant to 42 U.S.C. § 1983. On July 27, 2016, the court dismissed
the action without prejudice to plaintiff pursuing his claims in state court, but without leave to
amend in this court, concluding that the court lacked jurisdiction over the matter. (Doc. Nos. 17,
18.) Plaintiff filed a motion to alter the judgment as well as a motion for rehearing which were
both denied. (Doc. Nos. 19–22.) Plaintiff then filed a notice of appeal on May 15, 2017. (Doc.
No. 23.) On May 18, 2017, the United States Court of Appeals for the Ninth Circuit referred the
matter to this court for a determination of whether the appeal is frivolous or taken in bad faith
under Federal Rule of Appellate Procedure 24(a)(3)(A), (Doc. No. 26).
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
States, 369 U.S. 438, 445 (1962)); see also Hooker v. American Airlines, 302 F.3d 1091, 1092
(9th Cir. 2002) (if at least one issue or claim is non-frivolous, the appeal must proceed in forma
pauperis as a whole). A frivolous action is one “lacking [an] arguable basis in law or in fact.”
Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984). “[T]o determine that an appeal is in
good faith, a court need only find that a reasonable person could suppose that the appeal has some
merit.” Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000).
The court dismissed this action on the ground that plaintiff’s complaint set forth no
cognizable claims under § 1983 and the court lacked jurisdiction over plaintiff’s state law breach
of contract claim. In his appeal, plaintiff does not identify any legitimate grounds for appeal and
mischaracterizes the court’s dismissal as sounding in habeas corpus. (Doc. No. 23 at 1)
(“Petitioner hereby appeal[s] from the judgment of the court denying the Petition for Writ of
Habeas Corpus.”). Though plaintiff signed his notice of appeal on May 10, 2017, he indicates
that the judgment he seeks to appeal was entered on a date two months after he signed the
notice—“Said judgment entered on July of 2017.” (Id.) (emphasis in original). This court can
discern no basis for plaintiff’s appeal other than his mere disagreement with the court’s ruling,
which does not suffice to demonstrate good faith.
Given the foregoing:
1. 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 Court is
directed to serve this order on plaintiff and the U.S. Court of Appeals for the Ninth Circuit.
IT IS SO ORDERED.
May 19, 2017
UNITED STATES DISTRICT JUDGE
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