Burns v. International Business Machines Corporation

• Court: District Court, W.D. Washington
• Decided: January 9, 2023
• Docket: 2:20-cv-01555
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 VIVIAN BURNS,

10 Plaintiff, Case No. C20-1555RSM 11 v. ORDER REVOKING IN FORMA 12 PAUPERIS STATUS ON APPEAL 13 INTERNATIONAL BUSINESS MACHINES CORPORATION, 14 Defendant. 15 16 This matter comes before the Court on a referral from the Ninth Circuit to determine 17 whether in forma pauperis (“IFP”) status should continue on appeal. Dkt. #82. Pro se Plaintiff 18 19 Vivian Burns was granted leave to proceed IFP in this matter on October 21, 2020. Dkt. #4. 20 Plaintiff’s claims were dismissed on summary judgment on November 29, 2021. Dkt. 21 #49. The case was closed. Id. Plaintiff continued to file motions. The Court denied Rule 59 22 and Rule 60 motions and a motion for reconsideration filed by Plaintiff. Dkts. #57 and #64. On 23 24 January 25, 2022, the Court stated it “will not consider further memoranda or declarations filed 25 in this case that attempt to argue the merits of [Plaintiff's] dismissed claims.” Dkt. #61 at 2. On 26 March 3, 2022, the Court struck Plaintiff’s “2nd Motion for Substantive Due Process and 27 Evidentiary Hearing” as duplicative. Dkt. #66. In that Minute Order, the Court stated it “will 28 continue to strike further filings in this case that attempt to argue the merits of Plaintiff’s 1 2 dismissed claims or which seek relief that has already been denied.” 3 On March 10, 2022, the Court denied a Motion to reopen the time to file an appeal. Dkt. 4 #68. 5 Ms. Burns has filed other frivolous motions. For example, on March 31, 2022, Plaintiff 6 filed a “Motion to Vacate Void Judgment for Lack of Subject Matter Jurisdiction and Personal 7 8 Jurisdiction.” Dkt. #73. The Court found the filing frivolous, untimely, and moot, and struck it 9 via Minute Order. Dkt. #74. Six months later, Ms. Burns filed a 16-page “Motion to Show Cause 10 Why Defendant Should Have Summary Judgment Contrary to Law.” Dkt. #75. Ms. Burns 11 addressed the merits of her case, repeated previously made arguments, and raised alleged rule- 12 13 violations that the Court found to be frivolous, untimely, and moot in a September 26, 2022, 14 Minute Order. Dkt. #78. She cited no valid basis for obtaining her requested relief in a closed 15 case. The Court struck the filing. Id. Her appeal is based on this Minute Order. See Dkt. #79. 16 Where, as here, a party was permitted to proceed IFP in the District Court, the party may 17 proceed on appeal in forma pauperis without further authorization unless the District Court 18 19 certifies in writing that the appeal is not taken in good faith or that the party is not otherwise 20 entitled to proceed IFP. Fed. R. App. P. 24(a)(3); 28 U.S.C. § 1915(a)(3) (“An appeal may not 21 be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.”). 22 An appeal is taken in “good faith” where it seeks review of at least one issue or claim that is 23 found to be “non-frivolous.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). 24 25 An issue is “frivolous” where it “lacks an arguable basis either in law or in fact.” Neitzke v. 26 Williams, 490 U.S. 319, 325 (1989). Legally frivolous claims are those “based on an indisputably 27 28 meritless legal theory,” such as claims against defendants who are immune from suit or for 1 2 infringement of a legal interest that clearly does not exist. Id. at 327. 3 Ms. Burns’s claims were dismissed after careful review of applicable law and the record, 4 including Ms. Burns’s deposition testimony. The time for filing an appeal based on that dismissal 5 has long since expired. The Court’s subsequent Orders have largely been based on the Civil 6 Rules and other procedural grounds, and in any event the time for appealing many of those orders 7 8 has also expired. The September 26, 2022, Minute Order at issue essentially repeats the 9 procedural history and finds that Ms. Burns cites no valid basis for reopening the case. The Court 10 believes that any appeal of this ruling necessarily lacks an arguable basis in law or in fact. 11 This Court cannot find that Plaintiff’s appeal has been taken in good faith. The Court 12 13 maintains that, by its assessment of the Complaint, Plaintiff’s appeal is clearly frivolous. 14 Accordingly, the Court hereby FINDS AND ORDERS that Plaintiff’s in forma pauperis status is 15 REVOKED. 16 DATED this 9th day of January, 2023. 17

18 19 A 20 RICARDO S. MARTINEZ 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28