In Re: Sean Patrick Gjerde

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/26/2015 RECOMMENDING that the 2 Motion to Proceed In Forma Pauperis be denied. Referred to Judge Kimberly J. Mueller. Objections due within 14 after being served with the findings and recommendations. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SEAN PATRICK GJERDE,

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Plaintiff,
v.

No. 2:15-mc-103-KJM-EFB PS
BAP No. EC-15-1193
Bk. No. 15-11520

ROBERT A. HAWKINS, CHAPTER 7,
TRUSTEE,
FINDINGS AND RECOMMENDATION
Defendant.

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Sean Gjerde has requested leave to proceed in forma pauperis with an appeal before the

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United States Bankruptcy Appellate Panel of the Ninth Circuit (“BAP”). ECF No. 1. The BAP

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lacks authority to grant or deny in form pauperis motions under 28 U.S.C. § 1915(a), In re

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Perroton, 958 F.2d 889 (9th Cir. 1992), and therefore Gjerde’s application to proceed in forma

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pauperis was transferred to this court. As explained below, the application must be denied.

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In April 2015, Gjerde filed a Chapter 7 Bankruptcy petition. Gjerde v. Hawkins, 15-

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11520 (Bankr. E.D. Cal. 2015), ECF No. 1. The assigned bankruptcy judge transferred the case

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to Chief Bankruptcy Judge Klein because Gjerde had prior cases that were assigned to Judge

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Klein. Id., ECF No. 21. After reassignment, the bankruptcy court granted Gjerde’s application

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for a waiver of the Chapter 7 filing fee. Id., ECF No. 31. Shortly thereafter, the bankruptcy court

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issued an order vacating the order granting the fee waiver. Id., ECF No. 33. In its order, the
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bankruptcy court stated that “[u]pon entering the [waiver] order, the Court discovered the Chapter

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7 Trustee’s opposition to the motion.” Id. As the court had failed to consider the Chapter 7

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Trustee’s objections in deciding the motion for a fee waiver, the court vacated its prior order

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pursuant to Federal Rule of Civil Procedure 60(a). Id.

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Gjerde subsequently filed a notice of appeal, requesting that the BAP review the

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bankruptcy court’s orders vacating the waiver of the Chapter 7 filing fee and transferring the case

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to Judge Klein. Id., ECF No. 44. On appeal, Gjerde sought permission to proceed in forma

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pauperis. The BAP Clerk issued an order giving the bankruptcy court the opportunity to make

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certification under 28 U.S.C. 1915(a)(3) regarding whether the appeal is frivolous. The

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bankruptcy court issued a certification, finding that the appeal of both orders is frivolous. Id.,

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ECF No. 67.

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Specifically, the bankruptcy court observed that Gjerde is a disbarred lawyer who,

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according to the bankruptcy court’s records, represented debtors in eighty-one bankruptcy cases

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in the Eastern District of California. Id. He initiated the underlying bankruptcy case when he

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was a federal prisoner, after being found guilty of conspiracy to commit mail fraud and making

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false statements in mortgage applications. Id., see United States v. Gjerde, No. 2:10-cr-0022

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(E.D. Cal. Sep. 24, 2013), ECF No. 479. He was disbarred after his federal conviction. In re

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Gjerde, No. 12-O16479-LMA (State Bar Court of California). Based on these facts, the

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bankruptcy court found that Gjerde “is knowledgeable about law and bankruptcy procedure

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notwithstanding that he has been disbarred.” Gjerde v. Hawkins, 15-11520, ECF No. 67 at 3.

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With this backdrop in mind, the bankruptcy court found that the appeals from the two

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orders were not taken in good faith. Id. First, with regard to the reassignment order, the court

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noted that “[t]he ability of a court to provide for assignment of related cases to the same judge as

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a matter of judicial administration is beyond cavil. Mr. Gjerde knows that the appropriate

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measure for a party who is dissatisfied with the assignment of a case to particular judge is to

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request recusal of the judge.” Id. As for the order vacating the fee waiver, the court noted that

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“the ability of a court to correct an administrative error pursuant to Federal Rule of Civil

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Procedure 60(a) is incontestable . . . . As a trained lawyer, Mr. Gjerde knows that the court is
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required to consider a matter on the merits after hearing from all interested parties . . . [and] that

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his remedy is to wait for the opportunity to appeal the ultimate order once it is decided on the

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merits.”1 Id.

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Accordingly, the bankruptcy court certified that the appeals of the two orders were not

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taken in good faith. Id. The bankruptcy court’s certification was forwarded to the BAP.

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However, because the BAP lacks authority to grant or deny in forma pauperis applications, the

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matter was transferred to this court.

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This court has now independently reviewed Gjerde’s request and concludes that he is not

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entitled to proceed in forma pauperis. Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not

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be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.”

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The court agrees with the findings provided by the bankruptcy court in its certification, (No. 15-

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11520, ECF No. 67) and adopts them in full. Thus, the court finds that Gjerde’s appeals from the

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two bankruptcy orders are not taken in good faith.

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Accordingly, it is hereby RECOMMENDED that his application to proceed in forma
pauperis 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 being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 26, 2015.

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The bankruptcy court subsequently issued an order denying Gjerde’s application for a
fee waiver. Gjerde v. Hawkins, 15-11520 (Bankr. E.D. Cal. 2015), ECF No. 75.
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