Cunningham v. University of Hawaii

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII DYLAN CUNNINGHAM, ) 22-cv-00504 HG-WRP ) Plaintiff, ) ) vs. ) ) UNIVERSITY OF HAWAII, ) ) Defendant. ) ) ORDER DENYING PLAINTIFF LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL On December 5, 2022, Plaintiff Dylan Cunningham, proceeding pro se, filed a Complaint and an Application to Proceed in District Court Without Prepaying Fees or Costs. (ECF Nos. 1, 3). On December 13, 2022, the Magistrate Judge issued a Findings and Recommendation to Grant Plaintiff’s Application to Proceed Without Prepayment of Fees and Dismiss the Complaint With Prejudice. (ECF No. 6). On February 14, 2023, the Court issued an Order Adopting the Magistrate Judge’s Findings and Recommendation to Grant Plaintiff’s Application to Proceed Without Prepayment of Fees and Dismiss the Complaint With Prejudice [ECF No. 6], as Modified and Overruling Plaintiff Dylan Cunningham’s Objection [ECF No. 7]. (ECF No. 9). On the same day, the Court issued Judgment in favor of Defendant. (ECF No. 10). On February 22, 2023, Plaintiff filed a Motion to Set Aside Or Vacate The Court’s February 14, 2023 Order. (ECF No. 11). On March 8, 2023, Plaintiff filed a Notice of Appeal to the Ninth Circuit Court of Appeals. (ECF No. 12). On March 10, 2023, the District Court issued an Order Denying Plaintiff’s Motion to Set Aside Or Vacate Order. (ECF No. 13). On March 16, 2023, the Ninth Circuit Court of Appeals referred the matter to the District Court to evaluate “whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith.” (ECF No. 17).

STANDARD OF REVIEW Pursuant to Federal Rule of Appellate Procedure 24(a)(3), a party granted leave to proceed in forma pauperis in a district court action may continue in that status on appeal unless the district court certifies that the appeal is not taken in good faith. Similarly, 28 U.S.C. § 1915(a)(3) provides 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.” An appeal is taken in “good faith” if it seeks review of any issue that is “not frivolous.” Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge v. United States, 369 U.S. 438, 445 (1962)). An appeal is frivolous when it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). ANALYSIS

Plaintiff, proceeding pro se, filed a Complaint alleging that his former employer, Defendant University of Hawaii, violated the Americans with Disabilities Act (“ADA”) when it fired him after he refused to comply with its COVID-19 vaccination policy. (ECF No. 1). On February 14, 2023, the Court dismissed Plaintiff’s Complaint because Plaintiff failed to state a claim for disability discrimination or retaliation. (ECF No. 9 at pp. 5- 13). The Court considered and rejected the arguments that Plaintiff made in his Objection. (Id. at pp. 13-18). Plaintiff filed a Motion seeking reconsideration of the Court’s Order. (ECF No. 11). Plaintiff’s Motion merely repeated the arguments he previously raised, and the Court denied Plaintiff’s Motion seeking reconsideration. (ECF No. 13). Plaintiff’s appeal lacks an arguable basis in law or fact. As explained in the Court’s February 14, 2023 Order (ECF No. 9), Plaintiff failed to plausibly state a claim for relief based on his disagreement with the University of Hawaii’s COVID-19 policy and his misunderstanding of the Americans With Disabilities Act. The Court declined to allow Plaintiff leave to amend his Complaint because it found that any attempt to amend his Complaint would be futile. (See Court’s February 14, 2023 Order at p. 18, ECF No. 9). Plaintiff’s misunderstanding and disagreement with the Americans With Disabilities Act and the University’s policy do not provide a non-frivolous basis for appeal. See Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (explaining that revocation of a previously granted in forma pauperis status is appropriate when the district court finds that the appeal is frivolous).

CONCLUSION

The District Court CERTIFIES to the Ninth Circuit Court of Appeals that Plaintiff’s appeal is not taken in good faith and DENIES Plaintiff leave to proceed in forma pauperis on appeal. IT IS SO ORDERED. DATED: March 30, 2023, Honolulu, Hawaii.

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Dylan Cunningham v. University of Hawaii, 22-cv-00504 HG-WRP, ORDER DENYING PLAINTIFF LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL