Brahmana v. Henard et al

Filing 74

ORDER Certifying Appeal Not Taken in Good Faith re 73 USCA Order. Signed by Judge James Ware on April 8, 2011. (jwlc3, COURT STAFF) (Filed on 4/8/2011)

Brahmana v. Henard et al

Doc. 74

1 2 3 4 5 6 7 8 9 10 Metteyya Brahmana, Plaintiff, v.
For the Northern District of California

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NO. C 10-01790 JW ORDER CERTIFYING THAT PLAINTIFF'S APPEAL IS NOT TAKEN IN GOOD FAITH

United States District Court

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Joseph Lowell Henard, et al., 13 Defendants. 14 15 16 17 18 19 20 On March 23, 2011, the Court granted in part and denied in part Defendants' Motion to 21 Dismiss, denying dismissal as to Plaintiff's Sixth Cause of Action for violation of his Fourteenth 22 Amendment rights pursuant to 42 U.S.C. § 1983 and leaving unchallenged Plaintiff's Fourth Cause 23 of Action for violation of his First Amendment rights. (hereafter, "March 23 Order," Docket Item 24 No. 64.) 25 On March 24, 2011, Plaintiff filed a Notice of Voluntary Dismissal as to all remaining causes 26 of action in his case and requesting entry of final judgment on the basis that he wanted to 27 immediately appeal the Court's dismissal of his more "substantial" claims. (See Docket Item No. 28 / Presently before the Court is the Ninth Circuit's Referral Notice. (See Docket Item No. 73.) In its Notice, the Ninth Circuit requests a determination as to whether Petitioner's in forma pauperis status should continue for the pendency of his appeal. (Id.) Title 28 U.S.C. § 1915(a)(3) provides, in pertinent part: An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.

Dockets.Justia.com

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65.) On March 30, 2011, Plaintiff filed a Notice of Appeal to the Ninth Circuit. (See Docket Item No. 70.) On April 6, 2011, the Court entered Judgment. (See Docket Item No. 72.) Upon review, the Court does not find that Plaintiff's appeal was undertaken in good faith. Specifically, Plaintiff voluntarily dismissed his remaining potentially viable claims and failed to fully litigate the underlying action prior to filing an appeal on claims the March 23 Order found to be meritless. Thus, Plaintiff's appeal is frivolous. Accordingly, the Court certifies that Plaintiff's appeal is not taken in good faith.

Dated: April 8, 2011 JAMES WARE United States District Chief Judge

United States District Court

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For the Northern District of California

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: Jason Michael Heath [e-mail] Metteyya Brahmana [e-mail] Dated: April 8, 2011 Richard W. Wieking, Clerk By: /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

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United States District Court

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For the Northern District of California

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