Engelbrecht v. Ripa

Filing 22

NOTICE and ORDER FINDING that Appeal was NOT Taken in Good Faith signed by Chief Judge Lawrence J. O'Neill on 12/10/2018. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

TONYA D. ENGELBRECHT,

12
13

Plaintiff,

NOTICE AND ORDER FINDING THAT
APPEAL WAS NOT TAKEN IN GOOD
FAITH

v.

14
15
16

Case No. 1:17-cv-01339-LJO-EPG
Appeal No. 18-17290

KELLY RIPA,

(ECF Nos. 19 and 21)
Defendant.

17
18

Plaintiff Tonya D. Engelbrecht (“Plaintiff”) is proceeding pro se and in forma pauperis in

19

this action. Plaintiff’s original complaint, filed October 5, 2017, alleged claims of torture,

20

defamation, breach of contract, and violations of the California Welfare and Institution Code

21

against Kelly Ripa (“Defendant”), owner of Milojo Productions. ECF No. 1. After screening,

22

Plaintiff filed an amended complaint on February 28, 2018 alleging similar causes of action. ECF

23

No. 7. On August 17, 2018, this Court dismissed all but the breach of contract claim. ECF No. 10.

24

On August 21, 2018, the assigned Magistrate Judge directed Plaintiff to complete the paperwork

25

necessary to have the U.S. Marshals Service serve the FAC on Defendant. ECF No. 11. Plaintiff

26

did not comply, instead filing a motion for reconsideration of the Court’s earlier rulings, see ECF

27

No. 12, which was denied. ECF No. 13.

28

On October 10, 2018, the Magistrate Judge issued findings and recommendations (“F&Rs”)
1

1

recommending dismissal of this action without prejudice for Plaintiff’s failure to prosecute this

2

case and failure to comply with the Court’s August 21, 2018 order. ECF No. 14. On October 17,

3

2018, Plaintiff filed objections to the F&Rs. ECF No. 15. Those objections, however, addressed

4

only previously dismissed claims. This Court adopted the F&Rs on October 23, 2018, ECF No. 16,

5

and the Clerk entered Judgment. ECF No. 17.

6

Plaintiff filed a notice of appeal on November 21, 2018, ECF No. 18, and on December 4,

7

2018, the United States Court of Appeals for the Ninth Circuit referred the matter to the district

8

court for a determination whether the appeal is frivolous or taken in bad faith. Fed. R. App.

9

24(a)(3)(A). ECF No. 21.

10

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

11

Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing Coppedge v. United States, 369

12

U.S. 438, 445 (1962); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)

13

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

14

whole). The request of an indigent for leave to appeal in forma pauperis must be allowed unless

15

“the issues raised are so frivolous that the appeal would be dismissed in the case of a non-indigent

16

litigant.” Ellis v. United States, 356 U.S. 674, 675 (1958).

17

The Court dismissed all but Plaintiffs’ contract claim on the ground that those claims were

18

meritless. Plaintiff failed to prosecute the remaining contract claim and has presented no valid

19

reason for her failure to do so. The other issues raised in her notice of appeal are frivolous.

20

Accordingly, the Court HEREBY ORDERS as follows:

21

1.

22
23
24

Pursuant to Fed. R. App. P. 24(a)(3)(A), the Court finds that the appeal was not

taken in good faith; and
2.

Pursuant to Fed. R. App. P. 24(a)(4)(B), the Clerk of the Court shall serve this order

on Plaintiff and the Court of Appeals for the Ninth Circuit.

25
26
27

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

December 10, 2018

UNITED STATES CHIEF DISTRICT JUDGE
28
2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3