Todd v. McMahn et al

Filing 110

Order regarding Referral Notice, 109 : Because Plaintiff's appeal is frivolous, Plaintiff's IFP status is revoked. See 28 U.S.C. § 1915(a)(3); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). The clerk is directed to mail the Ninth Circuit and Plaintiff a copy of this Order. Signed on 12/20/2022 by Judge Michael J. McShane. (Deposited in outgoing mail to pro se party on 12/20/2022.) (cp)

Case 1:15-cv-01091-MC

Document 110

Filed 12/20/22

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHN H TODD,
Plaintiff,
v.

No. 1:15-cv-01091-MC
ORDER

GALE A MCMAHN, KLAMATH
COUNTY ANIMAL CONTROL, and
KLAMATH COUNTY,
Defendants.
_____________________________
MCSHANE, Judge:
The Ninth Circuit referred this matter to the Court for the limited purpose of determining
whether Plaintiff’s in forma pauperis (“IFP”) status should continue on appeal. Notice, ECF No.
109. “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is
not taken in good faith.” 28 U.S.C. § 1915(a)(3). An appeal is “not taken in good faith” if it is
frivolous, meaning “it lacks an arguable basis either in law or in fact.” See Hooker v. American
Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002); Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Pro se plaintiff John H. Todd brought this civil rights action against Klamath County
Animal Control, Officer McMahon, and Klamath County, alleging violations of his due process
rights when Animal Control officers seized more than 90 cats from Plaintiff’s home. This Court
granted Defendants’ Motion for Summary Judgment and dismissed this action with prejudice in
2016. Order, ECF No. 78; Judgment, ECF No. 79. The Ninth Circuit affirmed in 2017. Todd v.

1 – ORDER

Case 1:15-cv-01091-MC

Document 110

Filed 12/20/22

Page 2 of 3

McMahon, 698 F. App’x 535 (9th Cir. 2017). This Court denied Plaintiff’s most recent Motion
to Reopen Case and Set Aside Judgment, ECF No. 103, and Plaintiff now appeals.
The Court construes Plaintiff’s Motion as a Motion for Relief from Judgment under Fed.
R. Civ. P. 60(b). Because more than a year has passed since Judgment was entered, the Court
lacks jurisdiction to consider a motion under Rule 60(b)(1)–(3). Fed. R. Civ. P. 60(c)(1); see
Nevitt v. United States, 886 F.2d 1187, 1188 (9th Cir.1989). The Court therefore construes
Plaintiff’s motion under Rule 60(b)(6), a catch-all provision allowing the Court to set aside a
judgment for “any other reason that justifies relief.” See Lehman v. United States, 154 F.3d 1010,
1017 (9th Cir.1998). Courts have used Rule 60(b)(6) “sparingly as an equitable remedy to
prevent manifest injustice.” United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049
(9th Cir.1993). To obtain relief under Rule 60(b)(6), a moving party must “show both injury and
that circumstances beyond its control prevented timely action to protect its interests.” Id.
“Motions for relief from judgment pursuant to Rule 60(b) are addressed to the sound discretion
of the district court.” Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).
Plaintiff argues that, under the Younger abstention doctrine, his federal action should
have been stayed while his underlying state criminal case was ongoing. Pl.’s Mot., ECF No. 103.
Even assuming, without deciding, that Plaintiff is correct, his argument fails because the Ninth
Circuit already affirmed this Court’s ruling on the merits. Namely, the Ninth Circuit found that
“[s]ummary judgment on [Plaintiff’s] Fourth Amendment claim was proper because [Plaintiff]
failed to raise a genuine dispute of material fact as to whether defendant McMahon was not
authorized to obtain the warrant.” Todd, 698 F. App’x at 535. Further, Plaintiff pleaded guilty to
a code violation in his state case. Order 2, ECF No. 99; Pl.’s Mot. Relief Ex. 6, at 6, ECF No. 98.
To the extent that Plaintiff now seeks to challenge his state conviction by reopening his federal
2 – ORDER

Case 1:15-cv-01091-MC

Document 110

Filed 12/20/22

Page 3 of 3

case, this Court lacks jurisdiction under the Rooker-Feldman doctrine. See Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005); AmerisourceBergen Corp. v. Roden, 495
F.3d 1143, 1153 (9th Cir. 2007).
Because Plaintiff’s appeal is frivolous, Plaintiff’s IFP status is revoked. See 28 U.S.C. §
1915(a)(3); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). The clerk is
directed to mail the Ninth Circuit and Plaintiff a copy of this Order.

IT IS SO ORDERED.
DATED this 20th day of December, 2022.

_______/s/ Michael J. McShane ________
Michael McShane
United States District Judge

3 – ORDER