Goodwin v. Billings et al

Filing 36

ORDER Finding Appeal Not Taken in Good Faith 35 , signed by District Judge Dale A. Drozd on 12/18/2018: The Clerk of the Court is directed to serve this order on plaintiff and the U.S. Court of Appeals for the Ninth Circuit. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK GLENN GOODWIN,,

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No. 1:17-cv-01708-DAD-SAB

Plaintiff,
v.

ORDER FINDING APPEAL NOT TAKEN IN
GOOD FAITH

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OFFICER BILLINGS, et al.,,

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Defendant.

(Doc. No. 35)

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Plaintiff Patrick Glenn Goodwin is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983, alleging violations of his

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rights under the Eighth Amendment. On October 31, 2018, this court dismissed the action

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without prejudice, concluding the action was barred by the decision in Heck v. Humphrey, 512

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U.S. 477 (1994). (Doc. No. 30.) On November 30, 2018, plaintiff filed a notice of appeal. (Doc.

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No. 32.) On December 6, 2018, the United States Court of Appeals for the Ninth Circuit referred

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

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pursuant to 28 U.S.C. § 1915(a)(3). (Doc. No. 35.)

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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 was barred by the

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decision in Heck because the success of his claims—that defendants used excessive force against

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him and demonstrated deliberate indifference for his safety—would “necessarily imply or

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demonstrate the invalidity of [his] earlier conviction or sentence” for battery. (Doc. No. 30 at 2)

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(quoting Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005)). As noted in the findings and

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recommendations and in the order adopting those findings and recommendations, plaintiff

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attempted to proceed in this civil rights action on the theory that he did not commit a battery on

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defendant correctional officer Billings – the very crime for which plaintiff was convicted, with

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that conviction having been affirmed on appeal in state court. In his appeal of this court’s

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dismissal order, plaintiff does not identify any legitimate grounds for appeal and, instead,

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reiterates the same arguments that this court rejected. Primarily, plaintiff contends that his case is

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not barred because defendants transported him to an area of the prison where they knew he had

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enemies. (Doc. No. 32 at 3–5.) Be that as it may, plaintiff’s appeal does not dispute the fact that

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his claims alleging violations of his Eighth Amendment rights necessarily imply the invalidity of

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his earlier state court conviction for battery. The court can discern no basis for plaintiff’s appeal

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other than his mere disagreement with the court’s ruling, which does not suffice to demonstrate

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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

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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

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Circuit.

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IT IS SO ORDERED.
Dated:

December 18, 2018
UNITED STATES DISTRICT JUDGE

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