Opinion
C21-1149-LK
06-26-2024
GENEVA LANGWORTHY, Plaintiff, v. DEBRA LEV, et al., Defendants.
REPORT AND RECOMMENDATION
MICHELLE L. PETERSON, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the referral notice from the United States Court of Appeals for the Ninth Circuit. (Dkt. # 52.) The Ninth Circuit referred this matter to the District Judge for the limited purpose of determining whether in forma pauperis (“IFP”) should continue for Plaintiff's appeal or whether the appeal is frivolous or taken in bad faith. (Id.) The Honorable Lauren King, the District Judge assigned to this case, referred the Ninth Circuit's referral to the undersigned. The Court finds that Plaintiff's appeal to the Ninth Circuit is frivolous and recommends her IFP status be revoked.
“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). “[A]n appeal is not taken in good faith . . . if there is some evident improper motive or if no issue is presented which is not plainly frivolous.” Tweedy v. United States, 276 F.2d 649, 651 (9th Cir. 1960). An issue “is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Legally frivolous claims are those “based on an indisputably meritless legal theory,” such as claims against defendants who are immune from suit or for infringement of a legal interest that clearly does not exist. Id. at 327.
Plaintiff's Notice of Appeal “requests review of the order denying her motion to re-open a case which she voluntarily dismissed due to the racial prejudice and disability discrimination of the Biden-appointed judges.” (Dkt. # 50.) However, Plaintiff does not identify any errors purportedly made by the Court or explain why the Court's denial of her motion to reopen was incorrect. (See id.) Rather, Judge King correctly denied Plaintiff's motion because the Court lacked jurisdiction to reopen Plaintiff's case. The effect of a voluntary dismissal under Rule 41(a)(1)(A)(i) “is to leave the parties as though no action had been brought.” Com. Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.1997)). “Once the notice of dismissal has been filed, the district court loses jurisdiction over the dismissed claims and may not address the merits of such claims or issue further orders pertaining to them.” Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1049 (9th Cir. 2001). Here, Plaintiff voluntarily dismissed her case pursuant to Rule 41(a)(1)(A)(i) (see dkt. # 47), and Judge King correctly denied Plaintiff's motion to reopen her case because the Court lacked jurisdiction over Plaintiff's dismissed claims. (Dkt. # 49.) There is no basis in law or fact for Plaintiff to argue otherwise on appeal.
Having found that Plaintiff's appeal is frivolous, the Court recommends certifying that the proposed appeal is not taken in good faith under 28 U.S.C. § 1915(a)(3). As a result, the Court further recommends revoking Plaintiff's IFP status. See Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of IFP status is appropriate where district court finds the appeal to be frivolous).
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit not later than fourteen (14) days from the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar fourteen (14) days from the date they are filed. Responses to objections may be filed by the day before the noting date. If no timely objections are filed, the matter will be ready for consideration by the District Judge on July 11, 2024.
The Clerk is directed to send copies of this Report and Recommendation to the parties and to the Honorable Lauren King.