Popescu v. City of San Diego, et al
Filing
124
ORDER: (1) denying in forma pauperis Status on Appeal; and (2) denying Fees for Transcript on Appeal. For the reasons set forth herein, Plaintiff's 119 motion for in forma pauperis status on appeal and for payment of transcript fees on appeal is DENIED. Signed by Magistrate Judge William McCurine, Jr., on 1/6/2012. (USCA Case Number 12-55016. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
SOUTHERN DISTRICT OF CALIFORNIA
9
10
VIRGIL POPESCU
11
Plaintiff,
v.
12
13
CITY OF SAN DIEGO, PARKING
MANAGEMENT DIVISION and ROBERT
PAGAN #8073,
14
Defendants.
15
)
)
)
)
)
)
)
)
)
)
)
Civil No.06-CV-1577 WMc
ORDER: (1) DENYING IN FORMA
PAUPERIS STATUS ON APPEAL; AND
(2) DENYING FEES FOR TRANSCRIPT
ON APPEAL
[ECF No. 119].
16
I. INTRODUCTION
17
On January 3, 2011, Plaintiff filed a motion for waiver of costs on appeal. [ECF No. 119.] In
18
Plaintiff’s motion, he states he is indigent and asks the Court to waive the payment of costs and fees as
19
well as transcripts on appeal. Id. at 2-3. Plaintiff’s motion is DENIED. The Court finds Plaintiff’s
20
appeal is not taken in good faith and does not present a substantial question.
21
II. STANDARD OF REVIEW
22
A. In Forma Pauperis Status On Appeal
23
In accordance with 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if
24
the trial court certifies in writing that it is not taken in good faith.” The decision to allow an appeal to
25
proceed in forma pauperis remains within the jurisdiction of the trial court after the filing of an appeal..
26
In re Rains, 428 F.2d 893, 904 (9th Cir.2005).
27
///
28
///
1
06cv1577 WMc
1
B. Fees for Transcript On Appeal
2
As required by 28 U.S.C § 753(f), the judge must determine that an appeal by a person
3
“permitted to appeal in forma pauperis” is not frivolous, but presents a substantial question . Henderson
4
v. U.S., 734 F.2d 483, 484 (9th Cir. 1984).
5
III. DISCUSSION AND ORDER THEREON
6
In this case, the Court finds Plaintiff is not taking this appeal in good faith following the issuance
7
of the Court’s Findings of Fact and Conclusions of law filed on December 7, 2011, in which the Court
8
found after considering live testimony, documentary evidence, law and argument presented in a three-
9
day bench trial before the Honorable William McCurine, Jr. that Plaintiff’s argument in support of his
10
discrimination claim was “absurd on its face, reprehensible, shameless and utterly foolish.” ECF No.
11
114 at 3:12-4:6. The Court also found one of Plaintiff’s arguments in support of his claim “so devoid of
12
credibility as to border on perjury.” Id. at 4:13-15. Accordingly, section 1915(a)(3) prevents the grant
13
of in forma pauperis status to Plaintiff on appeal.
14
As to Plaintiff’s request for the payment of transcript fees on appeal, the Court finds section 753
15
similarly does not permit public payment of transcript fees because Plaintiff’s appeal is frivolous and
16
fails to present a substantial question. Plaintiff attempted to establish at trial that Defendant, a parking
17
enforcement officer with the last name of “Pagan” discriminated against him by issuing parking tickets
18
to Plaintiff’s car, which had religious and political bumper stickers attached to it. Plaintiff’s proof in
19
support of this claim was the very existence of Defendant’s last name - Pagan, which as the Court noted
20
in its Findings of Fact and Conclusions of Law meant “in Plaintiff’s mind that Defendant is an atheist
21
and hostile to Christians.” ECF No. 114 at 12-19. At the conclusion of the bench trial, the Court ruled
22
Plaintiff failed to meet his burden of proving Officer Pagan violated his constitutional rights by issuing
23
one or more parking violations in a discriminatory manner based on Plaintiff’s political or religious
24
beliefs. ECF No. 114 at 7:4-7. This issue is not reasonably debatable. See Washburn v. Fagan, 2007
25
WL 2043854, at*2 (N.D. Cal. 2007) (explaining there is a substantial question when the issue before the
26
appellate court is reasonably debatable.); see also Gonzales v. Riddle, 2008 WL 4723779, at *1 (E.D.
27
Cal. 2008) (stating that when considering whether an appeal presents a substantial question, the trial ///
28
///
2
06cv1577 WMc
1
2
3
4
5
court may take into account the statement of issues and related material).
For the reasons set forth herein, Plaintiff’s motion for in forma pauperis status on appeal and for
payment of transcript fees on appeal is DENIED.
IT IS SO ORDERED.
DATED: January 6, 2012
6
7
Hon. William McCurine, Jr.
U.S. Magistrate Judge, U.S. District Court
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
06cv1577 WMc
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?