Lindblad v. Bolanos et al

Filing 99

ORDER REVOKING IN FORMA PAUPERIS STATUS (Illston, Susan) (Filed on 9/15/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 ROBERT MICHAEL LINDBLAD, Plaintiff, 10 United States District Court Northern District of California ORDER REOVKING IN FORMA PAUPERIS STATUS ON APPEAL v. 11 12 Case No. 21-cv-06606-SI CARLOS G. BOLANOS, et al., Re: Dkt. No. 96, 98 Defendants. 13 14 15 16 The Court has received a referral notice from the Ninth Circuit Court of Appeal. Dkt. No. 17 98. The notice directs the Court to determine whether in forma pauperis (IFP) status should continue 18 for plaintiff’s appeal or whether the appeal is frivolous or taken in bad faith. See 28 U.S.C. 19 § 1915(a)(3). Also before the Court is plaintiff’s motion for leave to appeal IFP. Dkt. No. 96. 20 An appeal may not be taken IFP if it is not taken in good faith. 28 U.S.C. § 1915(a)(3). An 21 appeal is in good faith where any portion of the appeal is “non-frivolous.” Hooker v. American 22 Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). An issue is frivolous if it has “no arguable basis in 23 fact or law.” 24 incomprehensible may be frivolous. O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990). A claim that is 25 The Court liberally construes plaintiff’s arguments. Draper v. Rosario, 836 F.3d 1072, 1080 26 (9th Cir. 2016). Plaintiff raises seven issues on appeal.1 Dkt. No. 90. First, he argues that he 27 28 1 Plaintiff lists “Sixth Appealable Issue Claim” twice. See Dkt. No. 90 at 10, 11. United States District Court Northern District of California 1 properly served a summons on November 9, 2021 and defendants defaulted by failing to respond; 2 therefore, plaintiff should be entitled to default judgment. Id. at 1–2. Second, plaintiff alleges he 3 was “given a judgment with no citation or opinion on July 4, 2022.” Id. at 3. Third, plaintiff alleges 4 the Court did not respond to his motion for sanctions found at Dkt. No. 81, and that his motion for 5 sanctions was decided in an opinion that has been concealed from Defendant by the Court. Id. at 4. 6 Plaintiff appears to challenge the Court’s decision not to impose sanctions. Id. at 4–7. Fourth, 7 plaintiff appeals the Court’s decision not to permit a Second Amended Complaint. Id. at 7–9. Fifth, 8 plaintiff argues that the Court incorrectly dismissed his complaint as frivolous. Id. at 9–10. Sixth, 9 plaintiff appeals the denial of his excessive force claim and argues that the defendants’ actions in 10 detaining him was not objectively reasonable. Id. at 10–11. Finally, plaintiff argues he was subject 11 to an illegal search and seizure and that the Court violated his Fourteenth and Fifth Amendment due 12 process rights by dismissing the complaint. 13 Plaintiff’s first argument appears to be that he was entitled to default judgment because he 14 served Valerie Barnes, a legal administrator who he alleges is eligible to receive service of a 15 summons because she is a “clerk or secretary of a public entity.” Id. at 1–2. Plaintiff appears to be 16 confused as to Valerie’s position, which was noted as “legal office specialist,” not “legal officer.” 17 Dkt. No. 20 at 5; see Dkt. No. 90 at 2. Plaintiff does not explain why the “drastic step” of default 18 judgment was justified in this case. Falk v. Allen, 739 F.2s 461, 463 (9th Cir. 1984) (“[J]udgment 19 by default is a drastic step appropriate in extreme circumstances; a case should, whenever possible, 20 be decided on the merits.”). 21 Plaintiff next argues that the July 4, 2022 judgment is invalid because it does not contain a 22 reasoned opinion. Dkt. No. 90 at 3. As explained in the judgment itself, judgment was entered 23 because the action was dismissed without leave to amend. Dkt. No. 86. The Court’s reasoning for 24 dismissing the First Amended Complaint without leave to amend is detailed in the 19-page dismissal 25 order issued on the same date as the judgment. Dkt. No. 85. Plaintiff can find this order either 26 through ECF, where it is located at Docket Number 85, or on Westlaw, where it is listed as Lindblad 27 v. Bolanos, No. 21-CV-06606-SI, 2022 WL 2402646 (N.D. Cal. July 4, 2022). 28 Plaintiff also argues that no opinion was given concerning his motion for sanctions and that 2 United States District Court Northern District of California 1 a secret slip opinion appeared and then “disappeared” from Westlaw. Dkt. No. 90 at 4. The Court’s 2 reasoning for denying plaintiff’s motion for sanctions is detailed in the 19-page dismissal order. 3 Dkt. No. 85. Plaintiff can find this order either through ECF, where it is located at Docket Number 4 85, or on Westlaw, where it is listed as Lindblad v. Bolanos, No. 21-CV-06606-SI, 2022 WL 5 2402646 (N.D. Cal. July 4, 2022). Plaintiff’s argument that no reasoning was given is baseless. 6 Plaintiff also argues that he was prejudiced because the order was issued without a hearing 7 and before the opposition to his motion was due. Dkt. No. 90 at 4–5. Federal Rule of Civil 8 Procedure 78 permits courts to determine motions on briefs, without oral hearings. And plaintiff 9 was not prejudiced by a decision being made before defendants had a chance to oppose his motion. 10 Plaintiff repeats his argument that defense counsel Jennifer Stalzer allowed individuals to 11 sign and prepare legal work without a bar license and falsified facts. Dkt. No. 5. These arguments 12 arise out of a proof of service signed by a non-lawyer and disputed facts regarding the color of 13 plaintiff’s shirt, whether he carried a grey duffel bag, and whether he threatened Safeway employees. 14 See Dkt. No. 86 at 18. 15 Finally, plaintiff challenges the Court’s statement that Rule 11 requires notice to be given 16 and a 21 day period for correction before sanctions can be sought. Id. at 6–7. The Court incorrectly 17 cited Federal Rule of Civil Procedure 11(b)(2) for this requirement; the correct citation is Rule 18 11(c)(2). The Rule 11(c)(2) requirement nonetheless applies. 19 Plaintiff argues the Court violated his 14th Amendment Due Process by denying him the 20 opportunity to amend his complaint a second time. Dkt. No. 90 at 7–8. Plaintiff fails to explain any 21 coherent rationale under which he is entitled to amend his complaint a second time. 22 Plaintiff next argues the Court should not have dismissed his complaint. Dkt. No. 90 at 9. 23 He says that his complaint was “one of the most pressing cases to ever become necessary” and “so 24 complicated it requires a 70 page complaint” but does not explain why the dismissal was incorrect. 25 Id. 26 Plaintiff’s remaining claims are incomprehensible; it is not clear on what basis plaintiff 27 appeals. A claim that is incomprehensible is “without arguable basis in law.” Jackson v. State of 28 Ariz., 885 F.2d 639, 641 (9th Cir. 1989), superseded by statute on other grounds as stated in Lopez 3 1 2 3 v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The Court has reviewed the docket and determines that the appeal is frivolous. Accordingly, plaintiff’s motion to proceed in forma pauperis on appeal is DENIED. 4 5 6 7 8 IT IS SO ORDERED. Dated: September 15, 2022 ______________________________________ SUSAN ILLSTON United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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