Howard v. San Diego County Counsel et al

Filing 12

ORDER Responding to 11 Referral Notice. Here, upon review of the record, the Court concludes that Plaintiff's appeal lacks any arguable basis in law or fact, and thus is considered as not being taken "in good faith" pursuant to 28 U .S.C. § 1915(a)(3). Accordingly, the Court hereby REVOKES Plaintiff's IFP status. The Clerk of Court is directed to notify the Ninth Circuit Court of Appeals of this Order. Signed by Judge Michael M. Anello on 8/29/2018. (USCA Case Number 18-56141. Order electronically transmitted to the 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
Case No.: 18cv1183-MMA (JMA)

VIRGINIA HOWARD,

ORDER RESPONDING TO
REFERRAL NOTICE

Plaintiff,

v.

SAN DIEGO COUNTY COUNSEL, et
al.,

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[Doc. No. 11]

Defendants.

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On June 6, 2018, Plaintiff Virginia Howard (“Plaintiff”), proceeding pro se, filed

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this action against Defendants San Diego County Counsel and San Diego County

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Recorder/Assessor’s Office.1 See Complaint. On June 21, 2018, the Court issued an

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order granting Plaintiff’s motion to proceed in forma pauperis (“IFP”), dismissing the

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Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and denying Plaintiff’s motion for

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appointment of counsel. See Doc. No. 4. The Court construed Plaintiff’s Complaint as

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asserting a Monell claim against the County, and granted Plaintiff leave to file an

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amended complaint. See id. On July 13, 2018, Plaintiff filed a First Amended Complaint

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The Court construed the Complaint as asserting a claim against the County of San Diego
(“County”).
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18cv1183-MMA (JMA)

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(“FAC”) pursuant to 42 U.S.C. § 1983 against the County. See Doc. No. 5. The Court

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dismissed Plaintiff’s FAC with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B), and

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denied Plaintiff’s request for counsel. See Doc. No. 6. Plaintiff filed a timely Notice of

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Appeal. See Doc. No. 8.

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The Ninth Circuit Court of Appeals now refers this matter for the “limited purpose

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of determining whether in forma pauperis status should continue for this appeal or

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whether the appeal is frivolous or taken in bad faith.” Doc. No. 11 at 1. Rule 24(a)(3) of

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the Federal Rules of Appellate Procedure provides that a party granted leave to proceed

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IFP in the district court may continue that status on appeal unless the district court

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certifies that the appeal is not taken in good faith, which in this context means that it is

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frivolous. See Ellis v. United States, 356 U.S. 674, 674-75 (1958). Title 28 of the United

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States Code, section 1915(a)(3) similarly provides that an appeal may not be taken IFP if

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the trial court certifies it is not taken in good faith. For purposes of § 1915, an appeal is

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frivolous if it lacks any arguable basis in law or fact. See Neitzke v. Williams, 490 U.S.

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319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984).

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Here, upon review of the record, the Court concludes that Plaintiff’s appeal lacks

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any arguable basis in law or fact, and thus is considered as not being taken “in good

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faith” pursuant to 28 U.S.C. § 1915(a)(3). Accordingly, the Court hereby REVOKES

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Plaintiff’s IFP status. See Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (noting

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an indigent appellant is permitted to proceed in forma pauperis on appeal only if appeal

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would not be frivolous).

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The Clerk of Court is directed to notify the Ninth Circuit Court of Appeals of this

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Order. See Fed. R. App. P. 24(a)(4).

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IT IS SO ORDERED.

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Dated: August 29, 2018
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

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18cv1183-MMA (JMA)