Lino v. Small et al

Filing 141

ORDER denying as moot 137 Request for Certificate of Appealability; denying 136 Request to Reopen the Time for Appeal; denying 138 Motion for Leave to Appeal in forma pauperis. Here, there are no valid grounds on which an appeal can be based. Consequently, the Court certifies that any appeal taken from the Court's August 24 and September 28 Orders will not be taken in good faith and is therefore frivolous. The Clerk of Court shall notify the Court of Appeals of this order. Plaintiff may file a motion for leave to proceed in forma pauperis on appeal in the Court of Appeals within thirty days after service of notice of this Order. Any such motion "must include a copy of the affidavit filed in the district court and the distri ct court's statement of reasons for its action." Signed by Judge Michael M. Anello on 11/13/2012. (USCA Case Number 12-57047. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OWEN LINO,

CASE NO. 09 CV 1834 MMA (PCL)
Plaintiff,

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ORDER DENYING AS MOOT
REQUEST FOR CERTIFICATE OF
APPEALABILITY;

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vs.

[Doc. No. 137]
DENYING REQUEST TO REOPEN
THE TIME FOR APPEAL;

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[Doc. No. 136]
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L. SMALL et al.,

DENYING MOTION FOR LEAVE TO
APPEAL IN FORMA PAUPERIS

Defendants.

[Doc. No. 138]

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On August 21, 2009, Plaintiff filed this action against several defendants alleging

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violations of his civil rights under 42 U.S.C. § 1983. On April 13, 2012, the parties reached an

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amicable settlement of Plaintiff’s claims and recorded the terms of their agreement. See Doc. No.

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114. At the parties’ joint request, the Court dismissed the entire action with prejudice on April 26,

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2012. See Doc. No. 123. On July 5, 2012, Plaintiff moved for release from the settlement

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agreement. See Doc. No. 128. The Court denied the motion on August 24, 2012. See Doc. No.

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132. Thereafter, Plaintiff submitted a motion for reconsideration which the Court did not accept

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for filing due to untimeliness. See Doc. No. 133.
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Plaintiff now appeals the Court’s August 24, 2012 Order denying release from the

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settlement agreement and the Court’s September 28, 2012 Order rejecting his motion for

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reconsideration as discrepant. See Doc. Nos. 134, 135. Plaintiff also requests the Court issue a

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certificate of appealability, reopen the time for appeal, and grant leave to appeal in forma pauperis.

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See Doc. Nos. 136-138.

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REQUEST FOR CERTIFICATE OF APPEALABILITY

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As an initial matter, Plaintiff does not need a certificate of appealability to pursue his

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appeal. The requirement for a certificate of appealability only applies to claims for habeas corpus

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relief arising under 28 U.S.C. § 2254 or § 2255. See FED. R. APP. P. 22(b); see also Dalluge v.

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U.S. Dep’t of Justice, No. C11-5037RBL, 2011 WL 1675407, at *1 (W.D. Wash. May 4, 2011)

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(“As this case was brought pursuant to 42 U.S.C. § 1983, there is no requirement for a certificate

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of appealability.”); Jenkins v. Caplan, No. C 02-5603 RMW (PR), 2010 U.S. Dist. LEXIS 89923,

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2010 WL 3057410, at *1 (N.D. Cal. Aug. 2, 2010) (“[A] Certificate of Appealability is

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inapplicable to a § 1983 action.”). Accordingly, the Court DENIES AS MOOT Plaintiff’s request

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for a certificate of appealability.

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REQUEST TO REOPEN THE TIME FOR APPEAL

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Plaintiff’s notice of appeal is considered “filed” as of October 29, 2012, the date he appears

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to have deposited it with the prison’s internal mail system. See FED. R. APP. P. 4(c)(1). Rule 4(a)

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of the Federal Rules of Appellate Procedure requires that a notice of appeal “be filed with the

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district clerk within 30 days after the judgment or order appealed from is entered.” FED. R. APP. P.

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4(a)(1). As noted above, Plaintiff appeals two orders of the Court, issued on August 24 and

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September 28 respectively. To the extent either order is appealable, Plaintiff’s notice of appeal is

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timely as to the Court’s September 28 Order, but is untimely as to the August 24 Order. Plaintiff

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implicitly recognizes this problem by requesting the Court to reopen the time for him to file an

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appeal.

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Relief from the deadline for filing the notice of appeal may be obtained in the district court

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under Federal Rule of Appellate Procedure 4(a)(6) by way of a motion to reopen the time to file an

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appeal. Under Rule 4(a)(6), the district court may reopen the time to file an appeal for a period of
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14 days after the date when its order to reopen is entered, but only if all of the following conditions

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are satisfied:

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(A) the court finds that the moving party did not receive notice under Federal
Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be
appealed within 21 days after entry;

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(B) the motion is filed within 180 days after the judgment or order is entered or
within 14 days after the moving party receives notice under Federal Rule of Civil
Procedure 77(d) of the entry; and

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(C) the court finds that no party would be prejudiced.

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See FED. R. APP. P. 4(a)(6). “The procedures set forth in [R]ule 4 are strictly construed; there is no

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exception for prisoners proceeding pro se or for habeas corpus actions.” Malone v. Avenenti, 850

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F.2d 569, 572 (9th Cir. 1988).
Plaintiff has not established that he failed to receive notice of the entry of the August 24

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Order by September 12, 2012, within 21 days of entry. See FED. R. APP. P. 4(a)(6)(A). A review

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of the case docket indicates that Plaintiff was served with a copy of the Court’s Order via U.S.

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mail to the correct mailing address on the same date the Court issued the order. See Doc. No. 132.

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Furthermore, Plaintiff had drafted his motion for reconsideration of the Court’s August 24 Order

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and deposited it with the prison’s internal mailing system by September 12, 2012, according to the

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metered postage stamp on the mailing envelope. See Doc. No. 133. Thus, it appears that Plaintiff

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received notice of entry of the Court’s August 24 Order within 21 days after its entry. All of the

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three conditions under Rule 4(a)(6), as listed above, must be satisfied, or the district court may not

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reopen the time to file an appeal. Accordingly, the Court DENIES Plaintiff’s request.
MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

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Plaintiff also moves for leave to appeal in forma pauperis. Pursuant to the Federal Rules
of Appellate Procedure,
A party who was permitted to proceed in forma pauperis in the district-court
action . . . may proceed on appeal in forma pauperis without further authorization,
unless:
(A) the district court - before or after the notice of appeal is filed - certifies that
the appeal is not taken in good faith or finds that the party is not otherwise
entitled to proceed in forma pauperis and states in writing its reasons for the
certification or finding;

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or
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(B) a statute provides otherwise.

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FED. R. APP. P. 24(a)(3). Because Plaintiff was proceeding in forma pauperis in this action,

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Plaintiff is entitled to proceed in forma pauperis on appeal unless the Court finds his appeal is not

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taken in good faith or finds that he is not otherwise entitled to proceed in forma pauperis. “An

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appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken

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in good faith.” 28 U.S.C. § 1915(a)(3). “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 v. United States, 356 U.S. 674 (1958). An action is frivolous “where it lacks an arguable

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basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

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Here, there are no valid grounds on which an appeal can be based. Consequently, the

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Court certifies that any appeal taken from the Court’s August 24 and September 28 Orders will not

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be taken in good faith and is therefore frivolous. FED. R. APP. P. 24(a)(3)(A); Ellis v. United

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States, 356 U.S. 674, 674-75 (1958); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir.

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2002). Accordingly, the Court DENIES Plaintiff’s motion for leave to appeal in forma pauperis.

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The Clerk of Court shall notify the Court of Appeals of this order. See FED. R. APP. P.

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24(a)(4). Plaintiff may file a motion for leave to proceed in forma pauperis on appeal in the Court

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of Appeals within thirty days after service of notice of this Order. See FED. R. APP. P. 24(a)(5).

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Any such motion “must include a copy of the affidavit filed in the district court and the district

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court’s statement of reasons for its action.” Id.

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IT IS SO ORDERED.

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DATED: November 13, 2012

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Hon. Michael M. Anello
United States District Judge

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