Jose Sanchez Jimenez v. Dept of Justice

• Court: District Court, C.D. California
• Decided: July 21, 2022
• Docket: 2:22-cv-03855
• Status: Unknown

Opinion

Case 2:22-cv-03855-PA-PVC Document 9 Filed 07/21/22 Page 1 of 3 Page ID #:19

1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE SANCHEZ-JIMENEZ, Case No. CV 22-3855 PA (PVC)

12 Plaintiff, ORDER SUMMARILY DISMISSING 13 v. ACTION WITHOUT PREJUDICE 14 DEPARTMENT OF JUSTICE, 15 Defendant. 16

17 18 On June 3, 2022, Plaintiff Jose Sanchez-Jimenez filed a pro se civil rights 19 complaint under 42 U.S.C. § 1983. (“Complaint,” Dkt. No. 1). However, the Complaint 20 was not accompanied by payment of the full filing fee or an application to proceed in 21 forma pauperis (“IFP”). On June 13, 2022, the Court ordered Plaintiff to correct this 22 deficiency within thirty days. (“Order,” Dkt. No. 4). Plaintiff was expressly cautioned 23 that if he did not pay the full filing fee or submit a request to proceed IFP by the Court’s 24 deadline, “this case will be closed and dismissed without prejudice” without further prior 25 notice. (Id. at 2). 26 27 Instead of complying with the Court’s Order, on July 1, 2022, Plaintiff filed a one- 28 paragraph incomprehensible notice of appeal in the Ninth Circuit. (“Notice of Appeal,”

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1 Dkt. No. 6). “As a general rule, the filing of a notice of appeal divests a district court of 2 jurisdiction over those aspects of the case involved in the appeal.” Stein v. Wood, 127 3 F.3d 1187, 1189 (9th Cir. 1997). However, a “frivolous or forfeited appeal does not 4 automatically divest the district court of jurisdiction.” Chuman v. Wright, 960 F.2d 104, 5 105 (9th Cir. 1992). Specifically, where an appeal is “patently frivolous,” this circuit has 6 long “recognized an exception to the general rule that a valid notice of appeal divests the 7 district court of jurisdiction over all but tangential matters.” Marks v. Clarke, 102 F.3d 8 1012, 1018 n.8 (9th Cir. 1996). “This exception applies in cases in which the district 9 court certifies that the [movant]’s interlocutory appeal is ‘frivolous’ or ‘forfeited.’” Id. 10 (citing Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989)). It is well-settled that “a 11 premature notice of appeal is ineffective to transfer jurisdiction from the district court to 12 the court of appeals.” Riggs v. Scrivner, Inc., 927 F.2d 1146, 1148 (10th Cir. 1991); see 13 also In re Huezo, 860 F. App’x 117, 120 (9th Cir. 2021) (“[A] premature notice of appeal 14 from an interlocutory order does not automatically transfer jurisdiction to an appellate 15 court.”) (citing In re Rains, 428 F.3d 893, 903-04 (9th Cir. 2005)). 16 17 Here, Plaintiff did not and could not appeal from a final appealable order because 18 no such order has issued in this case. Indeed, it is impossible to determine from the 19 Notice of Appeal what lower court action Plaintiff is attempting to challenge or what 20 relief he seeks. As such, his appeal is frivolous and this Court retains jurisdiction to 21 dismiss this case for Plaintiff’s failure to pay the filing fee or file an IFP application. See 22 Guymon v. Nasset, 2016 WL 5475971, at *1 (D. Mont. Sept. 29, 2016) (certifying that 23 plaintiff’s pending appeal from a non-final order was frivolous and dismissing action); 24 Lau v. Harrington, 2012 WL 3143869, at *1 (E.D. Cal. Aug. 1, 2012) (dismissing 25 complaint on the merits where plaintiff’s pending appeal was “wholly without merit, there 26 having been at the time of its filing no ruling from which to appeal”). This Order shall 27 serve as certification that Plaintiff’s appeal is frivolous. 28

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1 More than thirty days have passed since the Court’s Order issued and Plaintiff has 2 || still not paid the filing fee or submitted an IFP application. Accordingly, this action is 3 || DISMISSED WITHOUT PREJUDICE. 5 IT IS SO ORDERED. 7 || Dated: July 21, 2022 \ — ? PERCY ANDERSON RCT JUDGE 10 I! |) Presented by: 12 . >| fal fo 4 PEDROV.CASTILLO, □□ 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28