Sherman v. Hobbs

Opinion

HONORABLE RICHARD A. JONES

WESTERN DISTRICT OF WASHINGTON

ANDRIAN SHERMAN, Case No. 2:20-cv-00748-RAJ v. ORDER STEVEN HOBBS, et al. ,

Defendants. This matter comes before the Court on the Ninth Circuit’s Referral Notice filed on February 23, 2021. Dkt. # 14. The Ninth Circuit referred the matter to the Court “for the limited purpose of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith.” Id. (citing 28 U.S.C. § 1915(a)(3)); see also Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of forma pauperis status is appropriate where district court finds the appeal to be frivolous). The Court had granted pro se Plaintiff Andrian Sherman’s (“Plaintiff”) motion for leave to proceed in forma pauperis on June 12, 2020. Dkt. # 5. The same day, Plaintiff filed a 42 U.S.C. § 1983 complaint against several King County assistant prosecutors and public defenders seeking $300 million. Dkt. # 6. Just three months prior, however, Plaintiff’s complaint against the same defendants alleging the same facts and wrongful conviction had been dismissed with prejudice by the Honorable James L. Robert. Dkt. # 8 in Case 2:20-cv-00191-JLR, Sherman v. Hobbs, et al. Judge Robart dismissed Plaintiff’s claims against Plaintiff’s public defenders with prejudice because neither was a state actor; dismissed Plaintiff’s claims against state prosecutors with prejudice because they were absolutely immune from civil damages; and dismissed the remainder of Plaintiff’s claims with leave to amend because Plaintiff had failed to show that his conviction had already been invalidated. Dkt. # 8 at 3. Because Plaintiff failed to file an amended complaint within the 20 days in which he was permitted to do so, Judge Robart later dismissed his complaint with prejudice. Dkt. # 8 (Case No. 20-191). In this action, Plaintiff asserted the same claims against the same parties without curing any deficiencies noted by Judge Robart. Moreover, despite having filed suit several months prior, Plaintiff stated in his complaint that he had not brought any other lawsuits in federal court. Dkt. # 6 at 3. In his Report and Recommendation, the Honorable Judge Tsuchida recommended that Plaintiff’s complaint be dismissed with prejudice. Dkt. # 8 at 4. After considering Plaintiff’s objections, Dkt. # 9, filed past the deadline for filing objections, the Court adopted Judge Tsuchida’s Report and Recommendation in full and dismissed Plaintiff’s complaint with prejudice. Dkt. # 10. The Court now determines that Plaintiff’s in forma pauperis status should not continue on appeal because the appeal is frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3); see also Hooker, 302 F.3d at 1092 (revocation of forma pauperis status is appropriate where district court finds the appeal to be frivolous). A pleading is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. v. Williams, 490 U.S. 319, 325 (1989). Pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure, the Court certifies that the appeal is not taken in good faith and that Plaintiff is not entitled to proceed on appeal in forma pauperis. The Clerk of the Court is directed to notify the parties and the United States Court of Appeals for the Ninth Circuit that this Court certifies, pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), that Plaintiff’s appeal is not taken in good faith and that he must therefore seek further authorization from the Court of Appeals pursuant to Rule 24(a)(5) to obtain leave to proceed in forma pauperis on appeal. DATED this 4th day of March, 2021. A

The Honorable Richard A. Jones United States District Judge