(PC) Brookins v. Acosta

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY L. BROOKINS, No. 1:19-cv-00401-JLT-HBK (PC) 12 Plaintiff, Appeal No. 24-1801 13 v. ORDER REVOKING IN FORMA PAUPERIS STATUS ON APPEAL 14 F. ACOSTA, (Doc. 79) 15 Defendant. 16 17 Barry L. Brookins proceeded pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. The Court dismissed the action as barred by the doctrine of res 19 judicata and entered judgment. (Docs. 72, 74-75.) On March 25, 2024, Plaintiff filed Notice of 20 Appeal, which was processed to the United States Court of Appeals for the Ninth Circuit as Case 21 No. 24-1801. (Docs. 77, 78.) 22 The Ninth Circuit referred this matter to the Court for the limited purpose of determining 23 whether in forma pauperis status should continue for this appeal or whether the appeal is 24 frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 25 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where 26 the District Court finds the appeal to be frivolous). An appeal may not be taken in forma 27 pauperis if the trial court certifies in writing that it is not taken in good faith. 28 U.S.C. § 28 1915(a)(3); Fed. R. App. P. 24(a)(3)(A). 1 Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v. 2 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir., cert. 3 denied, 393 U.S. 891 (1968)); Williams v. Marshall, 795 F. Supp. 978, 978-79 (N.D. Cal. 1992). 4 Good faith on appeal is demonstrated by an objective standard of a nonfrivolous issue. Coppedge 5 v. U.S. 369 U.S. 438, 445 (1962). An issue is “frivolous” where it “lacks an arguable basis either 6 in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A “good faith” appeal must 7 seek review of at least one “non-frivolous” issue or claim. Hooker, 302 F.3d at 1092. 8 Plaintiff’s Notice of Appeal does not identify the issues Plaintiff intends to present on 9 appeal, as required under Fed. R. Civ. P. 24(a)(1)(C). (See Doc. 76.) The Notice of Appeal 10 merely gives “notice of appeal” to the Clerk of Court of the Eastern District, the Ninth Circuit, 11 and Defendant’s counsel. (Doc. 76 at 1.) Thus, the Court cannot determine whether the issues 12 are nonfrivolous. Though Plaintiff’s filing satisfies the minimum requirements of Rule 3, it does 13 not establish that Plaintiff’s appeal is non-frivolous under Rule 24. See, e.g., Austin v. Kemper 14 Corp., 2022 WL 2276894, at *1 (N.D. Cal. June 23, 2022) (denying a motion to proceed in forma 15 pauperis on appeal for failure to comply with Rule 24(a)(1)(C), because the plaintiff did not 16 identify the arguments he intended to present on appeal); Sanders v. Fitness Int’l LLC, 2024 WL 17 945132, at *1 (D. Ariz. Feb. 7, 2024) (denying IFP status on referral from the circuit court and 18 upon the plaintiff’s motion because “[p]laintiff does not explain which issues he plans to present 19 on appeal”); see also Jimenez-Valero v. Asher, 2016 WL 8116156, at *1 (W.D. Wash. Dec. 21, 20 2016) (“Because [plaintiff] has not explained the basis for his appeal, the Court cannot determine 21 whether his appeal is frivolous), report and recommendation adopted, 2017 WL 384386 (W.D. 22 Wash. Jan. 24, 2017). 23 Moreover, as the Court previously noted, Plaintiff did not identify any basis to dispute the 24 determination that his claimed is barred by the doctrine of res judicata. (Doc. 74 at 2.) Rather, 25 Plaintiff merely cited factual issues he believed the state court wrongly decided or ignored. (Id.) 26 Indeed, the Court considered the objections and found Plaintiff “does not dispute that there was 27 an identity of parties between the state court matter and his federal suit.” (Id.) 28 Because Plaintiff failed to cite any basis for his appeal, the Court finds that Plaintiff’s 1 | appeal is frivolous and not taken in good faith. Accordingly, the Court ORDERS: 2 1. The appeal is declared frivolous and not taken in good faith. 3 2. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma 4 pauperis in Appeal No. 24-1801, filed March 25, 2024. 5 3. Pursuant to Federal Rule of Appellate Procedure 24(a)(4), this order serves as 6 notice to the parties and the United States Court of Appeals for the Ninth Circuit 7 of the finding that Plaintiff is not entitled to proceed in forma pauperis for this 8 appeal. 9 4, Defendant’s request to revoke in forma pauperis status (Doc. 80) is terminated as 10 moot. 11 5. The Clerk of the Court is directed to serve a copy of this order on the parties and 12 the United States Court of Appeals for the Ninth Circuit. 13 4 IT IS SO ORDERED. 5 Dated: _ April 17, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 | The Court independently performed its analysis related to the Ninth Circuit’s referral, as Defendant was not invited 28 | to respond to the referral notice.