Padula v. Morris

Filing 266

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr. on 11/16/2011 ORDERING that the Court DENIES Padula's 264 , 265 Motion to Proceed In Forma Pauperis. The Court hereby certifies that any appeal taken from this order is not in "good faith" within the meaning of 28 U.S.C. § 1915(a)(3). (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAYNA PADULA, ET AL.,

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Plaintiffs,

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No. 2:05-cv-00411-MCE-EFB

v.

MEMORANDUM AND ORDER

ROBERT MORRIS, ET AL.,

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Defendants.

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Presently before the Court is Plaintiff Dayna Padula’s

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Motion for Waiver for Hearing and Transcript Fees and Motion to

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Proceed In Forma Pauperis.

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are the United States Court of Appeal’s Affidavit for Permission

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to Appeal In Forma Pauperis (“Affidavit”) and Padula’s

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Declaration in Opposition to Bill of Costs (“Declaration”).

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ECF No. 265.

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Attached to the Motion

BACKGROUND AND CLAIMS

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After a five-day trial in July of 2011, a jury unanimously

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rejected Padula’s claims that she and other students were

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subjected to sexual harassment by the Principal and other

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employees at Dunsmuir High School in Dunsmuir, California.

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Thereafter, the Court entered judgment for Defendants.

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Throughout the proceedings, Padula was represented by counsel.

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Padula, who is twenty-two years old, now seeks: (1) to proceed in

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forma pauperis for her appeal, and (2) a waiver of the fees for

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the trial and hearing transcripts.

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Padula asserts she can no longer afford counsel or the costs

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for the transcripts.

Her Affidavit states that she receives an

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average monthly income of $644.00 (although she indicates she has

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only held two jobs: one from August 2011 to September 2011 and

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another from October 2011 to the present) and that she has $70 in

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a checking account.

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expenses are $1587.16.

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receiving any supplemental income, gifts, or other forms of

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financial assistance that might explain the discrepancy between

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her income and expenses.

Padula also states her total monthly
She does not indicate that she is

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In Addendum 1A to her Affidavit, Padula sets forth the

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substantive basis for her motions, listing 15 separate issues she

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apparently intends to raise on appeal.

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Padula essentially alleges that:

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Condensing her arguments,

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(1) the jury “may have” failed to consider certain unspecified

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evidence; (2) some of Defendants’ witnesses provided mistaken or

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untrue testimony; (3) there is a “possibility” of procedural

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irregularity based on unspecified surprise testimony; (4) there

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was prejudicial testimony; (5) there were time restraints that

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prevented her from presenting evidence and testimony; (6) there

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may be procedural irregularity because defense counsel “seemed to

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taint” one of Padula’s witnesses and accused Padula of having no

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credibility and of being a perjurer; (7) the jury panel was

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filled with an unspecified but “inordinate amount of” current and

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retired California school employees; and (8) “the trial did not

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enable disclosure of the Humboldt-Patty Cotter aspect of the

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case, a most important element that likely had a negative impact

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with omission.”

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jury and ultimately biased them against her.

Padula asserts that these issues influenced the

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ANALYSIS

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A.

In Forma Pauperis

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“[P]ermission to proceed in forma pauperis is itself a

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matter of privilege and not a right; denial of in forma pauperis

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status does not violate the applicant’s right to due process.”

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Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (citation

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omitted).

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Federal Rules of Appellate Procedure, an appeal may not be taken

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in forma pauperis if the trial court certifies in writing that it

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is not taken in good faith.

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See Coppedge v. United States, 369 U.S. 438, 445 (1962).

Pursuant to 28 U.S.C. § 1915(a)(3) and Rule 24 of the

Good faith is an objective standard.

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A plaintiff satisfies the good faith requirement if he or she

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seeks review of any issue that is “not frivolous.”

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Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge,

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369 U.S. at 445).

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lacks any arguable basis in law or fact.

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490 U.S. 319, 325, 327; Franklin v. Murphy, 745 F.2d 1221, 1225

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(9th Cir. 1984).

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Gardner v.

Under § 1915, an appeal is frivolous if it
Neitzke v. Williams,

The Court denies Padula’s Motion to Proceed In Forma
Pauperis.

First, regarding Padula’s Affidavit, the Court cannot

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account for the discrepancy between Padula’s claimed income and

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expenses in her Affidavit.

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discrepancy, Padula’s age, and her limited work history, there is

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a possibility that Padula’s parents have, and perhaps are,

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providing her with financial assistance.

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any amounts paid to Padula should have been disclosed in the

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Affidavit and her parents’ income may well be relevant to the

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Court’s determination of whether Padula is entitled to in forma

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pauperis status.

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114 (D. Conn. 1984) (“in ruling on motions to proceed in forma

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pauperis, . . . courts have considered the income of interested

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persons, such as spouses and parents, in evaluating the funds

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available to the movant.”); Fridman v. City of New York,

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195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (“In assessing an

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application to proceed in forma pauperis, a court may consider

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the resources that the applicant has or ‘can get’ from those who

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ordinarily provide the applicant with the ‘necessities of life,’

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such as ‘from a spouse, parent, adult sibling or other next

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friend.’”)

The Court notes that because of this

If that is the case,

See, e.g., Monti v. McKeon, 600 F. Supp. 112,

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Although the Court could seek additional information from

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Padula regarding her income and expenses, it is unnecessary to do

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so because the Court concludes that her appeal is not taken in

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good faith.

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the issues that Padula raises in Addendum 1A to her Affidavit

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because, in the aggregate and individually, her arguments are

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frivolous, lack merit, and could not be supported on appeal.

The Court finds it unnecessary to address each of

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In particular, Padula’s allegations that some of the

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evidence, testimony, argument and procedural restrictions may

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have affected the jury lack specificity and do not allege any

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procedural or substantive error.

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counsel objected to the jury composition, procedural

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restrictions, or the introduction of the evidence or testimony

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with which she now takes issue.

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her counsel was prevented from conducting redirect where there

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was unfavorable testimony or presenting an alternate argument to

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that given by defense counsel.

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immaterial if they were entitled to consider the unfavorable

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evidence, testimony and argument.

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is not persuaded that, under the objective standard, there is any

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arguable basis in law or fact to support the issues that Padula

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raises in her Addendum on appeal.

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Franklin, 745 F.2d at 1225.

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Padula may wish that she had a different jury, different rules

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and that certain evidence, testimony and argument had been

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excluded or limited, but she has not presented any basis.

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She does not indicate that her

She also does not allege that

How the jury reacted is

Stated another way, the Court

Neitzke, 490 U.S. at 325, 327;

With the benefit of hindsight,

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The Court hereby certifies that any appeal taken from this

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order is not in “good faith” within the meaning of 28 U.S.C.

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§ 1915(a)(3).

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IT IS SO ORDERED.
Dated: November 16, 2011

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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