Opinion
Civil Acti on 19-cv-01828-PAB-NRN
09-01-2021
WESTLEY YBARRA, Plaintiff, v. JOHN/JANE DOE #1, Intelligence Officer, Sterling Correctional Facility, ROBERT DICK, Case Manager III, Sterling Correctional Facility, JOHN/JANE DOE #2, Associate Warden, Sterling Correctional Facility, JOHN/JANE DOE #3, Warden, Sterling Correctional Facility, JOHN/JANE DOE # 4, Intelligence Officer, Colorado State Penitentiary, JOHN/JANE DOE # 5, Case Manager III, Colorado State Penitentiary, JACKIE MCCALL, Associate Warden, Colorado State Penitentiary, and EVA LITTLE, Lieutenant, Colorado Department of Corrections, Defendants.
ORDER
PHILIP A. BRIMMER, Chief United States District Judge
This matter is before the Court on the plaintiff Westley Ybarra's Request for Relief from Judgment or Order [Docket No. 109]. Plaintiff previously filed a motion for leave to proceed in forma pauperis on appeal pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24. Docket No. 105. The Court denied the motion, finding that, pursuant to 28 U.S.C. 1915(a)(3), the appeal was not taken in good faith because plaintiff had not shown the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal. Docket No. 107 at 1.
Plaintiff asks the Court, pursuant to Fed.R.Civ.P. 60(b), to grant him relief from this order. Docket No. 109 at 1. Section 1915 states that “[a]n 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). Plaintiff argues that the statute requires only that he present an affidavit stating the nature of the appeal and his belief that he is entitled to redress. Docket No. 109 at 2. Plaintiff argues that he declared under penalty of perjury that the appeal is not frivolous and presents a substantial question, and the Court has not found that plaintiff perjured himself. Id. However, the standard for “good faith” in § 1915 is objective, not subjective. Coppedge v. United States, 369 U.S. 438, 445 (1962) (“We hold, instead, that ‘good faith' in this context must be judged by an objective standard. We consider a defendant's good faith in this type of case demonstrated when he seeks appellate review of any issue not frivolous.”). Accordingly, the Court rejects plaintiff's argument. As noted in the prior order denying leave to proceed in forma pauperis, plaintiff may file a motion in the Court of Appeals for the Tenth Circuit. See Docket No. 107 at 2.
Accordingly, it is
ORDERED that plaintiff's Request for Relief from Judgment or Order [Docket No. 109] is DENIED. It is further
ORDERED that plaintiff may file a motion in the Court of Appeals for the Tenth Circuit.