McDaniel v. Powell, et al.

Filing 73

ORDER signed by Chief Judge Morrison C. England, Jr. on 8/20/2015 ACCORDINGLY pursuant to 28:915(a)(3) and Fed. R. App. P. 24(a)(3)(A), the Court certifies that Plaintiff' appeal is frivolous and her in forma pauperis status should be REVOKED. (cc: USCA 15-16565)(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TANYA MCDANIEL,

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No. 2:13-cv-02653-MCE-AC

Plaintiff,
v.

ORDER

DANIEL POWELL, et al.,

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Defendants.

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On July 29, 2015, this Court dismissed Plaintiff Tanya McDaniel’s (“Plaintiff) lawsuit

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without leave to amend, and entered judgment. ECF Nos. 60, 67. Plaintiff filed a notice of

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appeal, ECF No. 68, and the Ninth Circuit has referred the matter back to this Court “for the

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limited purpose of determining whether in forma pauperis status should continue for this appeal

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or whether the appeal is frivolous or taken in bad faith.” ECF No. 71 (citing 28 U.S.C.

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§ 1915(a)(3)); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)

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(revocation of forma pauperis status is appropriate where district court finds the appeal to be

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frivolous).

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Plaintiff’s complaint is premised on violations of her constitutional rights stemming from

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a traffic ticket she received from the Davis Police Department on July 26, 2013. ECF No. 46 at 3.

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Plaintiff alleges that she feared for her safety during this traffic stop, in part because she had

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endured harassment from the police department for years. Id. at 6–10. During the traffic stop,
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Plaintiff alleges that Officers John Vignau and Daniel Powell yelled at her, and in doing so

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exacerbated her post-traumatic stress disorder. Id. at 4.

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The Court held that these facts were insufficient to state § 1983 claims based on Plaintiff’s

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constitutional rights to freedom from unreasonable searches and seizures, due process, and equal

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protection. ECF Nos. 60, 67. The Court dismissed Plaintiff’s claims based on her constitutional

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right to freedom from unreasonable searches and seizures because she did not allege the use of

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anything beyond a de minimus use of force by Officers Vignau and Powell during the traffic stop.

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ECF No. 60 at 6. Plaintiff did allege the use of force during earlier incidents by members of the

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Davis Police Department, but those incidents all took place outside of § 1983’s two year statute of

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limitations. Id. at 4; Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004).

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In addition, the Court held that Plaintiff’s equal protection claims failed because she did

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not allege any facts showing that Officers Vignau and Powell acted with racial animus when they

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stopped her. ECF No. 60 at 7. The Court also held Plaintiff failed to state a due process claim

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based on the department’s treatment of her complaints because she did not identify any process

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she was entitled to and deprived of. Id. at 9. Finally, the Court held that Plaintiff failed to state a

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claim based on the police department’s failure to train because she did not allege anything beyond

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a bare assertion that the department had failed in its mission to “protect and serve.” Id. at 8, 10.

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The Court also declined to exercise jurisdiction over Plaintiff’s supplemental state law claims. Id.

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at 11–12.

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This Court is aware of no good-faith, non-frivolous basis for an appeal of this ruling, as

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the facts are clearly insufficient to state a § 1983 claim for the violation of Plaintiff’s

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constitutional rights. Accordingly, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App.

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P. 24(a)(3)(A), the Court certifies that Plaintiff’s appeal is frivolous and her in forma pauperis

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status should be revoked.

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IT IS SO ORDERED.
Dated: August 20, 2015

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