Hammler v. Hernandez et al

Filing 104

ORDER Denying 103 Motion to Proceed In forma pauperis on Appeal. Signed by Judge Cathy Ann Bencivengo on 10/20/2022. Ninth Circuit Court of Appeals notified electronically. (All non-registered users served via U.S. Mail Service)(smy1)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,
Plaintiff,

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v.

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J. HERNANDEZ, et al.,

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Case No.: 18cv259-CAB-MDD
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
ON APPEAL [Doc. No. 103]

Defendant.

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Plaintiff Allen Hammler (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis, filed his complaint on February 2, 2018, pursuant to 42 U.S.C. §1983.

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[Doc. No. 1.] On December 21, 2020, this Court issued an order granting Defendants’

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motion for terminating sanctions based on Plaintiff’s failure to participate in his

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depositions, and dismissed the complaint with prejudice. [Doc. No. 89.] Judgment was

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entered accordingly. [Doc. No. 90.] On January 11, 2021, Plaintiff filed a Notice of

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Appeal to the Ninth Circuit Court of Appeals. [Doc. No. 91.] On April 16, 2021, the

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appeal was dismissed. [Doc. No. 97.]

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On August 26, 2022, Plaintiff filed a motion for reconsideration pursuant to Rule

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60(b) of this Court’s order granting the motion for terminating sanctions. [Doc. No. 98.]

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On September 2, 2022, this Court issued an order denying the motion for reconsideration

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on that grounds that it was untimely and without merit. [Doc. No. 99.] On October 7,
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2022, Plaintiff filed a Notice of Interlocutory Appeal to the Ninth Circuit on this Court’s

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Order denying the motion for reconsideration. [Doc. No. 100.]

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On October 17, 2022, the Ninth Circuit Court of Appeals issued a Referral Notice,

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referring the matter to this Court for the limited purpose of determining whether in forma

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pauperis status should continue for this appeal or whether the appeal is frivolous or taken

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in bad faith. [Doc. No. 103.]

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A litigant who was previously permitted to proceed IFP may maintain such status

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on appeal unless the district court certifies that the appeal is not taken in good faith or

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finds that the party is not otherwise entitled to proceed IFP. See Fed. R. App. P.

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24(a)(3)(A). Similarly, 28 U.S.C. § 1915(a)(3) provides that “[a]n appeal may not be

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taken [IFP] if the trial court certifies in writing that it is not taken in good faith.” For

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purposes of section 1915, an appeal is frivolous if it lacks any arguable basis in law or

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fact. Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989); Gardner v. Pogue, 558 F.2d

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548, 550 (9th Cir. 1977) (stating that an indigent appellant is permitted to proceed IFP on

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appeal only if the appeal would not be frivolous).
Here, the Court’s order granting the Defendants’ motion for terminating sanctions

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and dismissing the case was issued on December 21, 2020. [Doc. No. 89.] Plaintiff’s

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Rule 60 motion, which is brought under reason (2) – newly discovered evidence—was

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not filed until August 26, 2022 – eight months after the one-year deadline. See

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Fed.R.Civ.P. 60(c)(1). Therefore, Plaintiff’s motion was untimely. In addition, the

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document that Plaintiff submitted in support of the motion for reconsideration was

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irrelevant and not a basis for Rule 60 relief. [See Doc. No. 99 at 2-3.] Therefore,

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Plaintiff’s appeal of the motion for reconsideration is frivolous. See Neitzke, 490 U.S. at

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327.

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Accordingly, the Court CERTIFIES that this current IFP appeal would not be

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taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). The Court DIRECTS the

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Clerk to notify Plaintiff and the Ninth Circuit Court of Appeals of this order pursuant to

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Federal Rule of Appellate Procedure 24(a)(4). Plaintiff may file a motion for leave to
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proceed IFP on appeal in the Ninth Circuit Court of Appeals within thirty (30) days after

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service of the notice of this Order as prescribed in the Federal Rules of Appellate

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Procedure. See Fed. R. App. P. 24(a) (5).

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IT IS SO ORDERED.
Dated: October 20, 2022

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