Opinion
No. 1:19-cv-00417-DAD-JLT (PC)
07-07-2020
ALLEN HAMMLER, Plaintiff, v. M. OLIVEIRA, Defendant.
ORDER FINDING APPEAL IS NOT FRIVOLOUS AND CONTINUING IN FORMA PAUPERIS STATUS (Doc. No. 28)
This action proceeded by way of a first amended complaint ("FAC") filed by plaintiff Allen Hammler, a state prisoner proceeding pro se and in forma pauperis, on January 23, 2020. (Doc. No. 11.) On February 7, 2020, the assigned magistrate judge screened the FAC and found that it failed to state a cognizable First Amendment retaliation claim because plaintiff did not allege any adverse action. (Doc. No. 12 at 3-5.) Rather than amend his FAC, plaintiff appealed to the Ninth Circuit Court of Appeals on March 2, 2020. (Doc. No. 13.) The Ninth Circuit dismissed plaintiff's appeal for lack of jurisdiction because the screening order was not a final or appealable order. (Doc. No. 16.) On April 1, 2020, the magistrate judge provided plaintiff another opportunity to amend his complaint (Doc. No. 17), which plaintiff declined and continued to maintain that the February 7, 2020 screening order was incorrect. (Doc. No. 19.) Therefore, on April 24, 2020, the magistrate judge issued findings and recommendations, recommending that plaintiff's FAC be dismissed for failure both to state a claim and to obey a court order. (Doc No. 21 at 2.) These findings and recommendations were adopted by the undersigned on June 4, 2020, and the case was dismissed. (Doc. No. 23 at 2.)
Plaintiff subsequently appealed from the dismissal order on June 29, 2020. (Doc. No. 25.) On July 1, 2020, the Ninth Circuit Court referred the matter back to this court for a determination as to whether in forma pauperis status should continue on appeal or whether the appeal was frivolous or taken in bad faith. (Doc. No. 28.)
"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). "The good faith requirement is satisfied if the appellant seeks review of any issue that is 'not frivolous.'" Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (quoting Coppedge v. United States, 369 U.S. 438, 445 (1962)); see also Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (holding that if at least one issue or claim is non-frivolous, the appeal must proceed in forma pauperis as a whole). An action is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). In other words, the term "frivolous," as used in § 1915 and when applied to a complaint, "embraces not only the inarguable legal conclusion, but also the fanciful factual allegation." Id.
The undersigned concludes that plaintiff's appeal is not frivolous. As the screening order explained (Doc. No. 12 at 3), defendant rejected an inmate grievance appeal on the ground that plaintiff had submitted another such appeal within the past fourteen days, in violation of prison regulations. (Doc. No. 11 at 3.) Plaintiff then sent defendant a letter indicating that the second appeal was not subject to the fourteen-day rule because it concerned events that allegedly took place at a different prison. (Id.) Plaintiff also indicated in that letter that if defendant "screened [] out" his inmate grievance again, plaintiff would sue defendant for violating his First Amendment rights. (Id.) Defendant responded in writing by informing plaintiff that the inmate appeal had been forwarded to the other prison, while also noting that "threats contained within appeal documents are reason for rejection" after plaintiff threatened to sue defendant for violating his First Amendment rights. (Doc. No. 11 at 3-6.) While the magistrate judge's screening order concluded that this chain of events did not amount to an adverse action sufficient to support a retaliation claim, plaintiff's position to the contrary is not completely devoid of any basis in law or in fact. Moreover, although the screening order also found that defendant's comment would not chill a person of ordinary firmness from filing future grievances (Doc. No. 12 at 4), the undersigned finds that plaintiff's assertion to the contrary is likewise not completely devoid of any basis in law or in fact.
Accordingly, plaintiff's in forma pauperis status shall continue on appeal. The Clerk of the Court is directed to serve a copy of this order on plaintiff, as well as the Ninth Circuit Court of Appeals. IT IS SO ORDERED.
Dated: July 7 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE