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Weldon v. Kapetan

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Jun 11, 2018
Case No. 1:17-cv-001536-LJO SKO (PC) (E.D. Cal. Jun. 11, 2018)

Opinion

Case No. 1:17-cv-001536-LJO SKO (PC) Appeal No. 18-16000

06-11-2018

PAUL WELDON, Plaintiff, v. JONATHAN NICHOLAS KAPETAN, et al., Defendants.


ORDER FINDING APPEAL NOT TAKEN IN GOOD FAITH (Doc. 18)

Plaintiff, Paul Weldon, 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 ("Section 1983"). On May 9, 2018, the Court dismissed the action without leave to amend. (Docs. 10 & 11) Plaintiff filed a notice of appeal on May 30, 2018 (Doc. 15), and on June 1, 2017, 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)(3)(A), whether the appeal is frivolous or taken in bad faith (Doc. 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 on the ground that (1) his claims did not fall within the scope of many of the statutes he alleged were violated; (2) any remaining claims under Section 1983 for money damages were barred by Heck v. Humphrey, 512 U.S. 477 (1994), and/or various forms of immunity; (3) any claims under Section 1983 for injunctive relief were otherwise barred; and (4) Plaintiff failed to raise any cognizable Section 1983 claim for declaratory relief. (See Doc. 10.) After giving Plaintiff an additional opportunity to justify leave to amend (Doc. 8), the Court dismissed his claims without leave to amend. (Doc. 10.) Plaintiff does not identify any legitimate grounds for appeal. The Court can discern no basis for Plaintiff's appeal other than his mere disagreement with the ruling, which does not suffice to demonstrate good faith.

Accordingly:

1. Pursuant to Fed. R. App. P. 24(a)(3)(A), the Court finds that the appeal was not taken in good faith; and

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.
IT IS SO ORDERED.

Dated: June 11 , 2018

/s/ Lawrence J. O'Neill

UNITED STATES CHIEF DISTRICT JUDGE


Summaries of

Weldon v. Kapetan

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Jun 11, 2018
Case No. 1:17-cv-001536-LJO SKO (PC) (E.D. Cal. Jun. 11, 2018)
Case details for

Weldon v. Kapetan

Case Details

Full title:PAUL WELDON, Plaintiff, v. JONATHAN NICHOLAS KAPETAN, et al., Defendants.

Court:UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jun 11, 2018

Citations

Case No. 1:17-cv-001536-LJO SKO (PC) (E.D. Cal. Jun. 11, 2018)