Shallowhorn v. Lopez

Opinion

Alfred E. SHALLOWHORN, Case No.: 23-cv-1273-AGS-KSC

Plaintiff, ORDER RESPONDING TO v. REFERRAL NOTICE (ECF 21) R. LOPEZ, et al., Defendants. This Court allowed plaintiff Alfred E. Shallowhorn to proceed in forma pauperis on his civil-rights claims against defendants, but dismissed three iterations of his complaint for failure to state a claim. (See ECF 5, 8, 16.) The Ninth Circuit has referred Shallowhorn’s subsequent appeal for the limited purpose of determining whether his IFP status should continue or whether the appeal is frivolous or taken in bad faith. (See ECF 21.) A plaintiff granted IFP status by a district court “may proceed on appeal in forma pauperis without further authorization, unless . . . the district court . . . certifies that the appeal is not taken in good faith.” Fed. R. App. P. 24(a)(3)(A). “In the absence of some evident improper motive, the applicant’s good faith is established by the presentation of any issue that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674 (1958). An action is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 409 U.S. 319, 325 (1989). But “a finding of a failure to state a claim does not invariably mean that the claim is without arguable merit.” Id. at 329. “[F]rivolousness in the [IFP] context refers to a more limited set of claims than does Rule 12(b)(6).” Id. The Court dismissed Shallowhorn’s pleadings here because he failed to allege facts sufficient to state a claim under any of his theories. (See generally ECF 5, 8, 16.) Although the Court stands by those decisions, it cannot conclude that Shallowhorn’s appeal is taken in bad faith or is “based on an indisputably meritless legal theory.” See Neitzke, 490 U.S. at 327. “[N]ot all unsuccessful claims are frivolous.” Id. at 329; cf. Morris v. Gonzales, No. 19-cv-2378-MMA-AGS, 2020 U.S. Dist. LEXIS 100817, at *1 (S.D. Cal. June 9, 2020) (declining to certify that the matter “lack[ed] any arguable basis in law or fact” and finding appeal “should be considered as having been taken ‘in good faith’” when complaint dismissed for failure to state a claim, not for being frivolous); Allen v. Diaz, No. 21-cv-0602-LAB-MDD (S.D. Cal. July 29, 2022), ECF 29 (same); Diaz v. Madden, No. 20-cv-2147-GPC-BGS (S.D. Cal. Dec. 17, 2021), ECF 18 (same). Accordingly, the Court finds no reason to deny Shallowhorn the ability to continue proceeding IFP on appeal and CERTIFIES that this appeal is not frivolous or taken in bad faith. The Clerk is directed to notify the Ninth Circuit Court of Appeals of this order. See Fed. R. App. P. 24(a)(4). Dated: May 3, 2024

Andrew G. Schopler United States District Judge 2