Opinion
22-cv-06822-BLF
08-23-2023
JANE WANG, Plaintiff, v. CITY OF CUPERTINO, et al., Defendants.
ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
BETH LABSON FREEMAN, UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Jane Wang's motion for leave to proceed in forma pauperis on appeal. Having considered the motion, relevant law, and the record in this case, the Court hereby CERTIFIES that the appeal is not taken in good faith, and therefore DENIES the motion.
Plaintiff Jane Wang brought this action pro se against Defendants the City of Cupertino and Philip Willkomm. Ms. Wang alleged that Defendants violated her rights when they fined her for, and ultimately removed, a playhouse in her backyard. On July 19, 2023, this Court granted Defendants' motion to dismiss without leave to amend on all federal claims and declined to exercise supplemental jurisdiction over the state law claims. ECF No. 43. The Court then entered judgment for Defendants. ECF No. 44. On August 14, 2023, Ms. Wang appealed the judgment to the United States Court of Appeals for the Ninth Circuit. ECF No. 50. The appellate court referred the appeal to this Court for the purpose of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith.
“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 test for allowing an appeal in forma pauperis is easily met; 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) (citing Coppedge v. United States, 369 U.S. 438, 445 (1962)) (quotation marks omitted); see also Hooker v. Am. 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). 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.
Here, the Court finds that Plaintiff's appeal is not taken in good faith because it is frivolous. As the Court explained in its order granting Defendants' motion to dismiss, each one of Ms. Wang's federal claims failed because either the claim did not properly allege sufficient facts, the claim was barred by issue preclusion, the statute of limitations had run for the claim, or the corresponding statute had no private right of action to bring a claim. The Court expressly considered whether further amendment could cure the deficiencies and concluded that after three failed attempts, including instructions from the Court regarding deficiencies in those attempts, further amendment would be futile. To the extent Ms. Wang seeks to appeal the Court's judgment, the claim lacks an arguable basis in law.
For the foregoing reasons, the Court CERTIFIES that Plaintiff's appeal is not taken in good faith. Plaintiff's motion for leave to proceed in forma pauperis on appeal is therefore DENIED.
IT IS SO ORDERED.