Hammer v. United States of America et al

Filing 33

ORDER: For the reasons set forth in the Court's order granting Defendant's Motion to Dismiss and denying Plaintiff's Motion to Remand, the Court finds Plaintiff's appeal to be frivolous. Plaintiff's 32 supplemental brief in troduces no cogent argument persuading the Court otherwise. Therefore, pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies in writing that Plaintiff's appeal is not taken in good faith. Signed by Judge Barry Ted Moskowitz on 10/9/2018. (USCA Case Number 18-56227. Order electronically transmitted to the US Court of Appeals.) (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17-cv-02137-BTM-NLS
HAMMER,
Plaintiff,

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v.

ORDER
ECF NOS. 31, 32

UNITED STATES OF AMERICA
Defendant.

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On December 18, 2017, the Court granted Plaintiff’s Motion to Proceed In

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Forma Pauperis. (ECF No. 20). On September 13, 2018, the Court granted

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Defendant’s Motion to Dismiss and denied Plaintiff’s Motion to Remand, finding

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that Plaintiff’s claims were barred by issue preclusion. (ECF No. 26).

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On September 19, 2018, the Ninth Circuit referred the matter back to this

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Court for “the limited purpose of determining whether in forma pauperis status

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should continue for this appeal or whether the appeal is frivolous or taken in bad

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faith.” (ECF No. 31). Plaintiff filed a supplemental brief to oppose the revocation

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of his in forma pauperis status. (ECF No. 32).
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17-cv-02137-BTM-NLS

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A court may excuse a party from prepayment of fees if the party submits an

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affidavit stating their assets and that such assets are insufficient to pay court fees.

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28 U.S.C. § 1915(a)(1). However, “[a]n appeal may not be taken in forma pauperis

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if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C.

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1915(a)(3). When an appeal raises only frivolous arguments, it is not taken in good

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faith. See id.; Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).

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For the reasons set forth in the Court’s order granting Defendant’s Motion to

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Dismiss and denying Plaintiff’s Motion to Remand, the Court finds Plaintiff’s appeal

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to be frivolous. (ECF No. 26). Plaintiff’s supplemental brief introduces no cogent

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argument persuading the Court otherwise. (ECF No. 32). Therefore, pursuant to

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28 U.S.C. § 1915(a)(3), the Court certifies in writing that Plaintiff’s appeal is not

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taken in good faith.

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Dated: October 9, 2018

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