Harrell v. Hornbrook Community Services District, et al.

Filing 177

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/27/17: The Clerk shall correct RCF No. 176 to reflect that the request was made by defendant Sharrel Barnes. IT IS HEREBY RECOMMENDED that Defendant's request to proceed on appeal in forma pauperis should be DENIED. F&R referred to Judge District Judge Kimberly J. Mueller. Objections to F&R due within fourteen days. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PETER T. HARRELL,

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No. 2:14-cv-01595-KJM-GGH

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

HORNBROOK COMMUNITY SERVICE
DISTRICT, et al.,
Defendants.

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Defendant Sharrell Barnes has requested in forma pauperis status, ECF No. 176

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(erroneously docketed as a request by Peter Harrell), in connection with her Notice of Appeal,

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ECF No. 170, of the district court’s Order dismissing the above captioned matter with prejudice,

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ECF No. 159, and the subsequent entry of judgment. ECF No. 160.

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Although the affidavit signed by defendant Barnes indicates she may be unable to pay the

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costs and expenses of appeal, her request should nonetheless be denied on the ground that her

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attempt to appeal is a frivolous act. Barnes is not the party against whom the Order was entered,

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but rather a defendant to whose advantage the Order redounded. As this court noted in its Order

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and Findings and Recommendation that led to the district court’s Order and the Judgment, ECF

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No 157, defendant Barnes, along with defendant Gifford, who has his own suit in process against

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most of the defendants in this case, filed objections to the court’s findings and recommendations

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asserting that while she is not responsible for any of the actions alleged by plaintiff Harrell, she
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believes his claims have merit as to the other defendants in the case and should be decided on its

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merits. See, e.g. ECF No. 147 at 9:22-2.

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The undersigned has expressed concern that the two cases – Gifford v. Hornbrook

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Community Services District, et al., 2:16-cv-00955-KHM-GGH, and the instant one seemed, at

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best, to constitute using litigation for purely political purposes, and at worst, to bankrupt a tiny

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services district through litigation expenses, in which defendant Barnes appears complicit.

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Barnes’ action in appealing her dismssal from the litigation supports this concern and certainly

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renders her attempt to appeal frivolous. For this reason this court should not grant in forma

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pauperis standing to Barnes in this case.1

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IT IS HEREBY ORDERED that the Clerk shall correct RCF No. 176 to reflect that the
request was made by defendant Sharrel Barnes.

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In light of the foregoing IT IS HEREBY RECOMMENDED that: Defendant’s request to
proceed on appeal in forma pauperis should be DENIED.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after these findings and recommendations are filed, parties may file written objections with the

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court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 27, 2017

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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Although research discloses myriad cases where a defendant has cross-appealed in order to
argue the district court had not gone far enough in its orders, cases are not found in which a
defendant has appealed to reverse a favorable judgment of dismissal, in order to thereby get himor herself reinstated as a defendant in an ongoing litigation.
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