(PC) Mena v. Kernan ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ARMANDO J. MENA, No. 1:18-cv-01190-AWI-JLT (PC) 10 Plaintiff, 11 v. ORDER FINDING APPEAL NOT TAKEN IN GOOD FAITH 12 KERNAN, et al., 13 Defendants. 14 15 Plaintiff, Armando J. Mena, is a state prisoner proceeding pro se and in forma pauperis in 16 this civil rights action which he filed pursuant to 42 U.S.C. § 1983. On July 15, 2019, the court 17 dismissed the action because the defendants are entitled to qualified immunity on Plaintiff’s 18 claims. (Doc. Nos. 9, 13.) Plaintiff appealed and the United States Court of Appeals for the 19 Ninth Circuit referred the matter to this Court for a determination, under Federal Rule of 20 Appellate Procedure 24(a), whether the appeal is frivolous or taken in bad faith. (Doc. No. 18.) 21 An appeal is taken in good faith if the appellant seeks review of any issue that is not 22 frivolous. Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing Coppedge v. United 23 States, 369 U.S. 438, 445 (1962); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th 24 Cir. 2002) (if at least one issue or claim is non-frivolous, the appeal must proceed in forma 25 pauperis as a whole). A frivolous action is one “lacking [an] arguable basis in law or in fact.” 26 Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984). “[T]o determine that an appeal is in 27 good faith, a court need only find that a reasonable person could suppose that the appeal has some 28 merit.” Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000). 1 The court dismissed this action because, in light of Hines v. Youseff, 914 F.3d 1218 (9th 2 | Cir. 2019), Defendants are entitled to qualified immunity on Plaintiff's claims. Plaintiff filed a 3 | request for certificate of appealability, which was erroneously processed by the court clerk’s 4 || office as a notice of appeal.’ (See Doc. 15.) Either way, Plaintiff’s filing fails to state any basis 5 | to find that the findings and recommendations and order adopting were erroneous and the Court 6 | finds none. No basis for Plaintiff's filing other than his mere disagreement with the ruling is 7 | discernable, which does not suffice to demonstrate good faith or merit. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Pursuant to Fed. R. App. P. 24(a)(3)(A), the Court finds that the appeal was not 10 taken in good faith; and 11 2. Pursuant to Fed. R. App. P. 24(a)(4)(B), the Clerk of the Court shall serve this 12 order on Plaintiff and the Court of Appeals for the Ninth Circuit. 13 4 IT IS SO ORDERED. 2p 15 | Dated: _ August 23, 2019 : _-SENIOR DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 J ' This minor docketing error is of no consequence as a certificate of appealability is required to appeal a decision in a 27 habeas proceeding, but has no application in this civil rights case. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). It was actually in Plaintiffs best interest that the document was processed as a notice 28 of appeal.