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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARMAH JOHNSON,

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No. 1:16-cv-00082-DAD-JLT (PC)

Plaintiff,
v.

ORDER FINDING APPEAL NOT TAKEN IN
GOOD FAITH

COTTA, et al.,
Defendants.

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Plaintiff, Armah Johnson, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action filed pursuant to 42 U.S.C. § 1983. On July 27, 2016, the court dismissed

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the action without prejudice to plaintiff pursuing his claims in state court, but without leave to

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amend in this court, concluding that the court lacked jurisdiction over the matter. (Doc. Nos. 17,

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18.) Plaintiff filed a motion to alter the judgment as well as a motion for rehearing which were

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both denied. (Doc. Nos. 19–22.) Plaintiff then filed a notice of appeal on May 15, 2017. (Doc.

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No. 23.) On May 18, 2017, the United States Court of Appeals for the Ninth Circuit referred the

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matter to this court for a determination of whether the appeal is frivolous or taken in bad faith

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under Federal Rule of Appellate Procedure 24(a)(3)(A), (Doc. No. 26).

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An appeal is taken in good faith if the appellant seeks review of any issue that is not

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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. American Airlines, 302 F.3d 1091, 1092

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(9th Cir. 2002) (if at least one issue or claim is non-frivolous, the appeal must proceed in forma

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pauperis as a whole). A frivolous action is one “lacking [an] arguable basis in law or in fact.”
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Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984). “[T]o determine that an appeal is in

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good faith, a court need only find that a reasonable person could suppose that the appeal has some

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

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The court dismissed this action on the ground that plaintiff’s complaint set forth no

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cognizable claims under § 1983 and the court lacked jurisdiction over plaintiff’s state law breach

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of contract claim. In his appeal, plaintiff does not identify any legitimate grounds for appeal and

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mischaracterizes the court’s dismissal as sounding in habeas corpus. (Doc. No. 23 at 1)

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(“Petitioner hereby appeal[s] from the judgment of the court denying the Petition for Writ of

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Habeas Corpus.”). Though plaintiff signed his notice of appeal on May 10, 2017, he indicates

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that the judgment he seeks to appeal was entered on a date two months after he signed the

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notice—“Said judgment entered on July of 2017.” (Id.) (emphasis in original). This court can

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discern no basis for plaintiff’s appeal other than his mere disagreement with the court’s ruling,

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which does not suffice to demonstrate good faith.

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Given the foregoing:

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1. Pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), the court finds that the

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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

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

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IT IS SO ORDERED.

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Dated:

May 19, 2017
UNITED STATES DISTRICT JUDGE

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