(PC) Valles v. CDCR ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ANDREW VALLES, 10 Plaintiff-Appellant, No. 2:20-cv-01905-TLN-AC 11 Ninth Circuit Case No. 21-16290 12 v. 13 CALIFORNIA DEPARTMENT OF ORDER FINDING APPEAL FRIVOLOUS CORRECTIONS AND AND REVOKING IN FORMA PAUPERIS 14 REHABILITATION and RALPH DIAZ, STATUS Secretary, 15 Defendants-Appellees, 16 17 18 19 20 This is a closed federal civil rights action. Plaintiff Andrew Valles (“Plaintiff”), a current 21 state prisoner, appeals to the Ninth Circuit Court of Appeals this Court’s dismissal of his action 22 without leave to amend. The Ninth Circuit referred the matter to this Court for a determination of 23 whether Plaintiff’s in forma pauperis (“IFP”) status “should continue for this appeal or whether 24 the appeal is frivolous or taken in bad faith.” (ECF No. 22.) The Court determines that Plaintiff’s 25 IFP status should not continue. 26 “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it 27 is not taken in good faith.” 28 U.S.C. § 1915(a)(3). “The test for allowing an appeal in forma 28 pauperis is easily met . . . [t]he good faith requirement is satisfied if the [appellant] seeks review 1 of any issue that is ‘not frivolous.’ ” Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) 2 (quoting Coppedge v. United States, 369 U.S. 438, 445 (1962)); see also Hooker v. Am. Airlines, 3 302 F.3d 1091, 1092 (9th Cir. 2002) (noting that an appeal is taken in “good faith” if it seeks 4 review of “non-frivolous” issues and holding that if at least one issue or claim is non-frivolous, 5 the appeal must proceed IFP as a whole). An action is frivolous “where it lacks an arguable basis 6 either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In other words, the term 7 “frivolous,” as used in § 1915 and when applied to a complaint, “embraces not only the 8 inarguable legal conclusion, but also the fanciful factual allegation.” Id. 9 As thoroughly detailed by the magistrate judge in the June 4, 2021 findings and 10 recommendations and subsequently adopted by this Court on July 15, 2021, Plaintiff’s complaint 11 was frivolous. (ECF No. 16 (adopting in full the findings and recommendations at ECF No. 11).) 12 More specifically, Plaintiff’s claims failed as a matter of law because: (1) they were moot; (2) 13 there is no protected property interest in parole or parole consideration to support a due process 14 claim; (3) questions of California law (with respect to whether Cal. Code Regs. tit. 15, § 15 3491(b)(3) was properly construed by the California Department of Corrections and 16 Rehabilitations) were not properly before this Court; (4) Plaintiff’s parole eligibility allegations 17 did not support an equal protection claim where there is a rational basis for statutory differences 18 related to parole for sex offenders; and (5) Plaintiff identified no facts or law implicating the Fifth 19 or Eighth Amendments. (See ECF No. 11 at 3–5.) Moreover, in addressing Plaintiff’s objections 20 to the findings and recommendations and his subsequently-filed amended complaint, the Court 21 found the proposed amended complaint also failed as a matter of law because: (1) Plaintiff failed 22 to name any proper defendants; (2) the amended allegations did not cure the previously-identified 23 deficiencies in Plaintiff’s claims; (3) Plaintiff attached documentation showing he was accorded 24 appropriate due process with respect to parole consideration; (4) Plaintiff’s new claim based on 25 medical care indicated improper venue; and (5) there is no protected interest in the processing of 26 prison grievances to support a due process claim. (See ECF No. 16 at 2.) In sum, there are no 27 valid grounds on which an appeal can be based, given that none of the arguments Plaintiff made 28 to this Court would be non-frivolous if made again on appeal. 1 Based on the record before it, the Court finds and certifies that any appeal taken from its 2 | July 15, 2021 Order dismissing Plaintiffs action (ECF No. 16) is frivolous and not taken in good 3 | faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Hooker, 302 F.3d at 1092; 4 | Neitzke, 490 U.S. at 325. Accordingly, Plaintiffs IFP status is hereby REVOKED. 5 The Clerk of the Court is directed to notify Plaintiff and the Ninth Circuit of this Order 6 | forthwith. See Fed. R. App. P. 24(a)(4). Plaintiff may file a motion for leave to proceed IFP on 7 | appeal in the Ninth Circuit within thirty (30) days after service of notice of this Order. See Fed. 8 | R. App. P. 24(a)(5). Any such motion “must include a copy of the affidavit filed in the district 9 | court and the district court’s statement of reasons for its action.” Id. 10 IT IS SO ORDERED. 11 | Dated: August 26, 2021 AN /) 12 \ | jf Ng [Daley 14 Troy L. Nuhlep ] United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28