Malone v. Vevea
Filing
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ORDER Regarding In Forma Pauperis Status on Appeal, signed by District Judge Anthony W. Ishii on 02/13/2017. (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL MALONE,
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Plaintiff
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CASE NO. 1:16-CV-1380 AWI JLT
ORDER REGARDING IN FORMA
PAUPERIS STATUS ON APPEAL
v.
VICTOR VEVEA,
(Doc. No. 13)
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Defendant
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This case was a civil dispute brought by Plaintiff (who is incarcerated and was granted in
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forma pauperis status) against Defendant based on Defendant’s alleged failure to meet contractual
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obligations.
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On November 22, 2016, the Magistrate Judge issued a Findings and Recommendation
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(“F&R”) that recommended dismissing the case due to a lack of subject matter jurisdiction. See
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Doc. No. 6. The F&R determined that Plaintiff had only alleged a state law breach of contract
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claim, and that the amount in controversy did not exceed $75,000.
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On December 8, 2016, Plaintiff filed objections. See Doc. No. 7. The objections were
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very short. See id. Without elaboration, Plaintiff merely stated that the F&R should be rejection
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and that case should proceed under 42 U.S.C. § 1981. See id.
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On January 19, 2017, the Court adopted the F&R. See Doc. No. 8. The Court found that
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the allegations did not support a § 1981 claim, that only a state law breach of contract claim had
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been alleged, and that dismissal was necessary due to a lack of subject matter jurisdiction. See id.
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The case was closed on the same day. See Doc. No. 9.
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On February 6, 2017, Plaintiff filed a notice of appeal. See Doc. No. 10.
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On February 10, 2017, the Ninth Circuit issued a referral notice under 28 U.S.C. §
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1915(a)(3) for this Court to determine whether in forma pauperis status should continue on appeal.
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See Doc. No. 13.
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“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it
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is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The “good faith” requirement will be satisfied
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if the appellant seeks review of any issue that is not frivolous. Gardner v. Pogue, 558 F.2d 548,
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550-51 (9th Cir. 1977) (citing Coppedge v. United States, 369 U.S. 438, 445 (1962)); see also
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Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).
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Here, the Court finds that the appeal is frivolous. The original complaint did not present a
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federal question or otherwise invoke the Court’s subject matter jurisdiction; dismissal was
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appropriate at that point. See Morongo Band of Mission Indians v. California State Bd. of
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Equalization, 858 F.2d 1376, 1380-81 (9th Cir. 1988); see also Mamigonian v. Biggs, 710 F.3d
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936, 942 (9th Cir. 2015). The factual allegations of both the original and amended complaint
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showed only a breach of contract. None of the elements of § 1983 were implicated, and a mere
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breach of contract does not implicate § 1981. A state law breach of contract claim does not invoke
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federal question jurisdiction. See Opera Plaza Residential Parcel Homeowners Ass’n v. Hoang,
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376 F.3d 831, 840 (9th Cir. 2004). Thus, the Court finds Plaintiff’s appeal from the decision to
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dismiss the case due to lack of subject matter jurisdiction is frivolous.
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ORDER
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Accordingly, IT IS HEREBY ORDERED that:
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The Court finds that the Plaintiff’s appeal was not taken in good faith for purposes of 28
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U.S.C. § 1915(a)(3) and that he should not be permitted to proceed in forma pauperis on
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appeal; and
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2.
Pursuant to Federal Rule of Appellate Procedure 24(a), the Clerk of the Court shall serve
this order on Plaintiff and the Ninth Circuit Court of Appeals.
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IT IS SO ORDERED.
Dated: February 13, 2017
SENIOR DISTRICT JUDGE
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