Ruiz v. Curry

Filing 42

ORDER Finding 37 Appeal not Taken in Good Faith, signed by District Judge Dale A. Drozd on 8/5/19. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROGELIO MAY RUIZ,

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No. 1:17-cv-01407-DAD-SKO (PC)

Plaintiff,
ORDER FINDING APPEAL NOT TAKEN IN
GOOD FAITH

v.
J. CURRY,
Defendant.

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Plaintiff Rogelio May Ruiz 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 February 25, 2019, the court

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dismissed the action, concluding that plaintiff had failed to state a cognizable claim. (Doc. No.

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35.) On March 22, 2019, plaintiff filed a notice of appeal. (Doc. No. 37.) On July 29, 2019, the

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United States Court of Appeals for the Ninth Circuit referred the matter to this court for a

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determination, under Federal Rule of Appellate Procedure 24(a), whether plaintiff’s appeal is

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frivolous or taken in bad faith. (Doc. No. 41).

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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. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir.

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

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

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court need only find that a reasonable person could suppose that the appeal has some merit.”

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Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000).
The court dismissed this action due to plaintiff’s failure to state a cognizable claim with

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respect to events which allegedly resulted in deprivation of his property. As a state prisoner,

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plaintiff cannot state a cognizable claim for an unauthorized deprivation of property under 42

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U.S.C. § 1983 because a suitable post-deprivation remedy is available to him under state law. See

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Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (“[A] negligent or intentional deprivation

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of a prisoner’s property fails to state a claim under section 1983 if the state has an adequate post[-

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]deprivation remedy. California Law provides an adequate post-deprivation remedy for any

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property deprivations.”) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984) and California

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Government Code §§ 810–95). Plaintiff also cannot proceed on a cause of action under

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California law because he did not allege compliance with the California Government Claims Act,

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which requires plaintiff to have first presented his claim to the California Victim Compensation

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and Government Claims Board. (Doc. No. 28 at 5–6); see also Munoz v. State of California, 33

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Cal. App. 4th 1767, 1776 (1995). Jurisdiction was not exercised over plaintiff’s claims under

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California law because he failed to state a cognizable claim, which precluded this court’s exercise

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of its supplemental jurisdiction.
Plaintiff’s notice of appeal repeats various of his allegations, which were previously

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considered and found wanting by this court. The undersigned can discern no basis for appeal in

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this case other than plaintiff’s mere disagreement with the court’s ruling, which does not suffice

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to demonstrate good faith or merit. This is particularly so, since plaintiff was twice provided the

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applicable pleading standards with regard to his claim by the court and was also provided the

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opportunity to correct the noted deficiencies in his pleadings.

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Accordingly:

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

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the appeal is not taken in good faith; and

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2. Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(B), the Clerk of the

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

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the Ninth Circuit.

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IT IS SO ORDERED.
Dated:

August 5, 2019
UNITED STATES DISTRICT JUDGE

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