Ashton v. State of Montana et al

Filing 20

ORDER re 19 USCA Order. Signed by Judge Dana L. Christensen on 12/5/2016. (APP) Ad hoc to the 9th Circuit and mailed to Ashton.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CV 15-96-M-DLC-JCL

ROBIN ASHTON,
Plaintiff,

ORDER
vs.
STATE OF MONTANA, OFFICE OF
DISCIPLINARY COUNSEL, JUDICIAL
STANDARDS COMMITTEE, MONTANA
MEDICAL LEGAL PANEL, DAWN APPLE,
DIANE TOMKINS, JEAN BRANSCUM,
DOE DEFENDANTS #1-45,
Defendants.
This matter was dismissed with prejudice and judgment was entered on
January 5, 2016. (Docs. 10, 11.) An Order denying Ms. Ashton's motion for
reconsideration was issued November 2, 2016. (Doc. 16.) Ms. Ashton filed a
Notice of Appeal on November 9, 2016. (Doc. 17.) The matter was referred back
to this Court on December 5, 2016 for the limited purpose of determining whether
in forma pauperis status should continue for the appeal or whether the appeal is
frivolous or taken in bad faith. (Doc. 19.)
The Federal Rules of Appellate Procedure provide as follows:
[A] party who was permitted to proceed in forma pauperis in the
district-court action, or who was determined to be financially unable
1

to obtain an adequate defense in a criminal case, 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;
Fed. R. App. P. 24(a)(3)(A).
Analogously, 28 U.S.C. § 1915(a)(3) provides "[a]n appeal may not be
taken in forma pauperis if the trial court certifies in writing that it is not taken in
good faith." The good faith standard is an objective one. See Coppedge v. United
States, 369 U.S. 438, 445 (1962). A plaintiff satisfies the "good faith"
requirement ifhe or she seeks review of any issue that is "not frivolous." Gardner
v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge, 369 U.S. at 445).
For purposes of section 1915, an appeal is frivolous if it lacks any arguable basis
in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989); Franklin v.
Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984).
The record makes plain the instant appeal would be frivolous as it lacks
arguable substance in law or fact. Any appeal of this decision would be frivolous.
IT IS HEREBY ORDERED THAT:
Ms. Ashton's appeal is frivolous and is not taken in good faith. Her in

2

forma pauperis status is therefore REVOKED.
Dated

this ~

day of December, 2016.

Dana L. Christensen, Chief Judge
United States District Court

3