Missud v. State of Nevada et al

Filing 96

ORDER by Judge Edward M. Chen Granting 95 Plaintiff's Application to Proceed In Forma Pauperis on Appeal. (emcsec, COURT STAFF) (Filed on 4/3/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PATRICK A. MISSUD,

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Plaintiff,
v.

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For the Northern District of California

United States District Court

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STATE OF NEVADA, et al.,

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No. C-11-3567 EMC
ORDER GRANTING PLAINTIFF’S
APPLICATION TO PROCEED IN
FORMA PAUPERIS ON APPEAL

Defendants.
___________________________________/

(Docket No. 95)

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Plaintiff Patrick Missud has submitted an application for leave to proceed in forma pauperis

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(“IFP”) on appeal to the Ninth Circuit Court of Appeals. Docket No. 95; see Fed. R. App. P. 24(a).

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Mr. Missud seeks to appeal this Court’s March 22, 2012 Order, in which the Court dismissed his

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claims against Defendant Horton for lack of personal jurisdiction, dismissed his claims against

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judicial officers for judicial immunity, the Rooker-Feldman doctrine, and failure to state a claim,

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dismissed his claims against the remaining defendants for failure to effect proper service, and

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declared Plaintiff a vexatious litigant. Docket 88.

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When presented with an application to proceed IFP, a court must first determine if the

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applicant satisfies the economic eligibility requirement of 28 U.S.C. § 1915(a). See Franklin v.

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Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). Section 1915(a) does not require an applicant to

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demonstrate absolute destitution. See McCone v. Holiday Inn Convention Ctr., 797 F.2d 853, 854

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(10th Cir. 1982) (citing Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339 (1948)).

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In the instant case, Mr. Missud states in his application that he is self-employed as an attorney,

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contractor, and engineer, has no current income, and has sizeable debt that outweighs his assets. See

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Appl., Docket No. 95. The Court thus concludes that he meets the economic eligibility requirement.

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Second, even if an applicant meets the economic requirements for IFP status, the Court may

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not grant an application to proceed IFP if the appeal is “not taken in good faith.” 28 U.S.C. §

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1915(a)(3). “‘Not taken in good faith’ means ‘frivolous.’” Gray v. Hamilton, No. C 10-4614, 2010

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WL 4281812, at *2 (N.D. Cal. Oct. 25, 2010) (finding an action frivolous because of defendants'

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judicial immunity and because action was an improper collateral attack on the court's decision in

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another action) (quoting Ellis v. United States, 356 U.S. 674, 674-75 (1958) (reversing denial of IFP

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where “the issue presented-probable cause to arrest-is not one that can necessarily be characterized
as frivolous.”) (internal quotation marks omitted); Hooker v. American Airlines, 302 F.3d 1091,

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For the Northern District of California

United States District Court

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1092 (9th Cir. 2002) (denial of IFP status is inappropriate if even one claim is non-frivolous));

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James v. Townsley, No. CV-11-050-EFS, 2011 WL 2559629, at * 1 (E.D. Wash. June 28, 2011)

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(denying IFP where “the Court lacks subject-matter jurisdiction over Plaintiff's claim and Defendant

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is entitled to quasi-judicial immunity”). “In the absence of some evident improper motive, the

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applicant's good faith is established by the presentation of any issue that is not plainly frivolous.”

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Ellis, 356 U.S. at 674-75.

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In the instant case, although nearly all of Mr. Missud’s claims are frivolous, one of his claims

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– that pertaining to the Court’s vexatious litigant designation – is non-frivolous. Accordingly, the

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Court must grant his IFP status “in toto.” See Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir.

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2002) (“We hold that Hooker is entitled to in forma pauperis status for this appeal in toto because

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the district court found portions of the appeal to be taken in good faith. We conclude that 28 U.S.C.

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§ 1915(a) requires in forma pauperis status to be authorized for an appeal as a whole and not on a

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piecemeal basis by particular claims.”).

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Accordingly, the Court GRANTS Mr. Missud’s application to proceed IFP on appeal.

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Plaintiff “may proceed on appeal without prepaying or giving security for fees and costs.” See Fed.

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R. App. P. 24(a)(2).

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This disposes of Docket No. 95.

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IT IS SO ORDERED.

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Dated: April 3, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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