Opinion
No. 1:18-cv-01190-AWI-JLT (PC)
08-23-2019
ARMANDO J. MENA, Plaintiff, v. KERNAN, et al., Defendants.
ORDER FINDING APPEAL NOT TAKEN IN GOOD FAITH
Plaintiff, Armando J. Mena, is a state prisoner proceeding pro se and in forma pauperis in this civil rights action which he filed pursuant to 42 U.S.C. § 1983. On July 15, 2019, the court dismissed the action because the defendants are entitled to qualified immunity on Plaintiff's claims. (Doc. Nos. 9, 13.) Plaintiff appealed and the United States Court of Appeals for the Ninth Circuit referred the matter to this Court for a determination, under Federal Rule of Appellate Procedure 24(a), whether the appeal is frivolous or taken in bad faith. (Doc. No. 18.)
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); 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). A frivolous action is one "lacking [an] arguable basis in law or in fact." Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984). "[T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000).
The court dismissed this action because, in light of Hines v. Youseff, 914 F.3d 1218 (9th Cir. 2019), Defendants are entitled to qualified immunity on Plaintiff's claims. Plaintiff filed a request for certificate of appealability, which was erroneously processed by the court clerk's office as a notice of appeal. (See Doc. 15.) Either way, Plaintiff's filing fails to state any basis to find that the findings and recommendations and order adopting were erroneous and the Court finds none. No basis for Plaintiff's filing other than his mere disagreement with the ruling is discernable, which does not suffice to demonstrate good faith or merit.
This minor docketing error is of no consequence as a certificate of appealability is required to appeal a decision in a habeas proceeding, but has no application in this civil rights case. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). It was actually in Plaintiff's best interest that the document was processed as a notice of appeal. --------
Accordingly, IT IS HEREBY ORDERED that:
1. Pursuant to Fed. R. App. P. 24(a)(3)(A), the Court finds that the appeal was not taken in good faith; andIT IS SO ORDERED. Dated: August 23, 2019
2. Pursuant to Fed. R. App. P. 24(a)(4)(B), the Clerk of the Court shall serve this order on Plaintiff and the Court of Appeals for the Ninth Circuit.
/s/_________
SENIOR DISTRICT JUDGE