Johnson v. Cotta et al

Filing 27

ORDER FINDING Appeal Not Taken in Good Faith signed by District Judge Dale A. Drozd on 5/19/2017. (Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ARMAH JOHNSON, 10 11 12 13 No. 1:16-cv-00082-DAD-JLT (PC) Plaintiff, v. ORDER FINDING APPEAL NOT TAKEN IN GOOD FAITH COTTA, et al., Defendants. 14 15 Plaintiff, Armah Johnson, is a state prisoner proceeding pro se and in forma pauperis in 16 this civil rights action filed pursuant to 42 U.S.C. § 1983. On July 27, 2016, the court dismissed 17 the action without prejudice to plaintiff pursuing his claims in state court, but without leave to 18 amend in this court, concluding that the court lacked jurisdiction over the matter. (Doc. Nos. 17, 19 18.) Plaintiff filed a motion to alter the judgment as well as a motion for rehearing which were 20 both denied. (Doc. Nos. 19–22.) Plaintiff then filed a notice of appeal on May 15, 2017. (Doc. 21 No. 23.) On May 18, 2017, the United States Court of Appeals for the Ninth Circuit referred the 22 matter to this court for a determination of whether the appeal is frivolous or taken in bad faith 23 under Federal Rule of Appellate Procedure 24(a)(3)(A), (Doc. No. 26). 24 An appeal is taken in good faith if the appellant seeks review of any issue that is not 25 frivolous. Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) (citing Coppedge v. United 26 States, 369 U.S. 438, 445 (1962)); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 27 (9th Cir. 2002) (if at least one issue or claim is non-frivolous, the appeal must proceed in forma 28 pauperis as a whole). A frivolous action is one “lacking [an] arguable basis in law or in fact.” 1 1 Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984). “[T]o determine that an appeal is in 2 good faith, a court need only find that a reasonable person could suppose that the appeal has some 3 merit.” Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000). 4 The court dismissed this action on the ground that plaintiff’s complaint set forth no 5 cognizable claims under § 1983 and the court lacked jurisdiction over plaintiff’s state law breach 6 of contract claim. In his appeal, plaintiff does not identify any legitimate grounds for appeal and 7 mischaracterizes the court’s dismissal as sounding in habeas corpus. (Doc. No. 23 at 1) 8 (“Petitioner hereby appeal[s] from the judgment of the court denying the Petition for Writ of 9 Habeas Corpus.”). Though plaintiff signed his notice of appeal on May 10, 2017, he indicates 10 that the judgment he seeks to appeal was entered on a date two months after he signed the 11 notice—“Said judgment entered on July of 2017.” (Id.) (emphasis in original). This court can 12 discern no basis for plaintiff’s appeal other than his mere disagreement with the court’s ruling, 13 which does not suffice to demonstrate good faith. 14 Given the foregoing: 15 1. Pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), the court finds that the 16 17 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 18 directed to serve this order on plaintiff and the U.S. Court of Appeals for the Ninth Circuit. 19 IT IS SO ORDERED. 20 Dated: May 19, 2017 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 2

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