Opinion
1:23-cv-00599-JLT-SAB (PC) Appeal 23-15850
06-19-2023
MALCOLM HANSON, Plaintiff, v. BOARD OF PAROLE HEARINGS, et al., Defendants.
NOTICE AND ORDER FINDING THAT APPEAL WAS NOT TAKEN IN GOOD FAITH
(DOC. 16)
This action was filed by pro se litigant Malcom Hanson on April 19, 2023, pursuant to 42 U.S.C. § 1983. The case was screened on April 25, 2023, at which time the assigned magistrate judge recommended dismissal of the action for failure to state a claim because Plaintiff sought to challenge the duration, not the conditions, of his confinement. (Doc. 9.) The undersigned adopted the findings and recommendations on May 22, 2023, and Judgment entered the same day. (Docs. 11, 12.) Plaintiff filed a notice of appeal on June 5, 2023. (Docs. 11, 13.) On June 8, 2023, the United States Court of Appeals for the Ninth Circuit referred this action for determination whether in forma pauperis status should continue on appeal, or whether the appeal is frivolous or taken in bad faith. (Doc. 16.) Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(B), the Court now certifies that the appeal filed on June 5, 2023, was not taken in good faith.
An appeal is taken in good faith if the appellant seeks review of any issue that is not frivolous. Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing Coppedge v. United States, 369 U.S. 438, 445 (1962)) (quotation marks omitted); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (if at least one issue or claim is non-frivolous, the appeal must proceed in forma pauperis as a whole). This case was dismissed because Plaintiff did not challenge the conditions of his confinement but rather the duration, which is not proper under Section 1983. See Hill v. McDonough, 547 U.S. 573, 579 (2006) (“Challenges to the lawfulness of confinement or to particulars affecting its duration are the province of habeas corpus”) (citation omitted). Therefore, the appeal is frivolous. Accordingly, the Court ORDERS:
1. Pursuant to Fed. R. App. P. 24(a)(4)(B), the Court finds that the appeal is frivolous and was not taken in good faith.
2. Pursuant to Fed. R. App. P. 24(a)(4), the Clerk of the Court shall serve this order on Plaintiff and the Court of Appeals for the Ninth Circuit.
IT IS SO ORDERED.