Shafirovich v. Trump

Opinion

ARKADY SHAFIROVICH, No. 1:20-cv-01343-DAD-EPG Plaintiff, v. ORDER FINDING APPEAL NOT TAKEN IN GOOD FAITH DONALD J. TRUMP, et al.,

Defendants. Plaintiff Arkady Shafirovich is proceeding pro se and in forma pauperis in this action. On March 23, 2021, the court dismissed this action, concluding that the complaint was frivolous. (Doc. No. 7.) On April 23, 2021, plaintiff filed a notice of appeal. (Doc. No. 9.) On August 23, 2021, 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 plaintiff’s appeal is frivolous or taken in bad faith. (Doc. No. 12.) 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. Am. 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). The court dismissed this action with prejudice due to the frivolousness of plaintiffs complaint, which alleged that that federal government agents placed a chip in plaintiff's body and directed electromagnetic radiation at him. (Doc. No. 1.) Accordingly, the court found that the facts alleged “rise to the level of the irrational or the wholly incredible” and denied leave to amend. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Plaintiffs notice of appeal does not dispute that his complaint was frivolous and consists of merely one sentence: “Plaintiff Arkady Shafirovbich intends to appeal judge’s decision on March 23, 2021 to close this case with prejudice.” (Doc. No. 9.) The undersigned can discern no basis for appeal in this case other than plaintiff's mere disagreement with the court finding as to the frivolous nature of the complaint, which does not suffice to demonstrate good faith or merit. Accordingly: 1. Pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), the court finds that the appeal is not taken in good faith; and 2. Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(B), the Clerk of the Court is directed to serve this order on plaintiff and the U.S. Court of Appeals for the Ninth Circuit. IT IS SO ORDERED. me □ Dated: _ August 30,2021 Yel A Load UNITED STATES DISTRICT JUDGE