(PC) Sanders v. Grimes

Opinion

TROY ALEXANDER SANDERS, No. 1:18-cv-01285-AWI-JLT (PC) Plaintiff, v. ORDER FINDING APPEAL NOT TAKEN IN GOOD FAITH GRIMES, et al., Defendants. Plaintiff, Troy Alexander Sanders, is a state prisoner proceeding pro se and in forma pauperis in this civil rights action which he filed pursuant to 42 U.S.C. § 1983. On July 12, 2019, the action was dismissed on a finding it was barred by Heck v. Humphry, 512 U.S. 477 (1994). (Docs. 17, 19.) Plaintiff appealed and the United States Court of Appeals for the Ninth Circuit referred the matter to this Court for a determination, under Federal Rule of Appellate Procedure 24(a), whether the appeal is frivolous or taken in bad faith. (Docs. 21, 24.) An appeal is taken in good faith if the appellant seeks review of any issue that is not frivolous. Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing Coppedge v. United States, 369 U.S. 438, 445 (1962); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (if at least one issue or claim is non-frivolous, the appeal must proceed in forma pauperis as a whole). A frivolous action is one “lacking [an] arguable basis in law or in fact.” Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984). “[T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit.” Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000). This action was dismissed because Plaintiff seeks release, but did not show that his conviction has been reversed, expunged, declared invalid, or called into question such to be allowed to proceed under § 1983 -- which is barred under Heck. Plaintiff’s notice of appeal does not state the basis for his appeal and nor does it state any basis to find that the findings and recommendations and order adopting were erroneous and the Court finds none. No basis for Plaintiffs filing other than his mere disagreement with the ruling is discernable, which does not suffice to demonstrate good faith or merit. Accordingly, IT IS HEREBY ORDERED that: 1. Pursuant to Fed. R. App. P. 24(a)(3)(A), the Court finds that the appeal was not taken in good faith; and 2. Pursuant to Fed. R. App. P. 24(a)(4)(B), the Clerk of the Court shall serve this order on Plaintiff and the Court of Appeals for the Ninth Circuit. Dated: _ August 23, 2019 — 7 □ Z Cb Led SENIOR DISTRICT JUDGE