Shallowhorn v. Lopez ( 2024 )

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Alfred E. SHALLOWHORN, Case No.: 23-cv-1273-AGS-KSC 4 Plaintiff, ORDER RESPONDING TO 5 v. REFERRAL NOTICE (ECF 21) 6 R. LOPEZ, et al., 7 Defendants. 8 9 This Court allowed plaintiff Alfred E. Shallowhorn to proceed in forma pauperis on 10 his civil-rights claims against defendants, but dismissed three iterations of his complaint 11 for failure to state a claim. (See ECF 5, 8, 16.) The Ninth Circuit has referred Shallowhorn’s 12 subsequent appeal for the limited purpose of determining whether his IFP status should 13 continue or whether the appeal is frivolous or taken in bad faith. (See ECF 21.) 14 A plaintiff granted IFP status by a district court “may proceed on appeal in forma 15 pauperis without further authorization, unless . . . the district court . . . certifies that the 16 appeal is not taken in good faith.” Fed. R. App. P. 24(a)(3)(A). “In the absence of some 17 evident improper motive, the applicant’s good faith is established by the presentation of 18 any issue that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674 (1958). 19 An action is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. 20 Williams, 409 U.S. 319, 325 (1989). But “a finding of a failure to state a claim does not 21 invariably mean that the claim is without arguable merit.” Id. at 329. “[F]rivolousness in 22 the [IFP] context refers to a more limited set of claims than does Rule 12(b)(6).” Id. 23 The Court dismissed Shallowhorn’s pleadings here because he failed to allege facts 24 sufficient to state a claim under any of his theories. (See generally ECF 5, 8, 16.) Although 25 the Court stands by those decisions, it cannot conclude that Shallowhorn’s appeal is taken 26 in bad faith or is “based on an indisputably meritless legal theory.” See Neitzke, 490 U.S. 27 at 327. “[N]ot all unsuccessful claims are frivolous.” Id. at 329; cf. Morris v. Gonzales, 28 No. 19-cv-2378-MMA-AGS, 2020 U.S. Dist. LEXIS 100817, at *1 (S.D. Cal. June 9, 1 || 2020) (declining to certify that the matter “lack[ed] any arguable basis in law or fact” and 2 || finding appeal “should be considered as having been taken ‘in good faith’” when complaint 3 dismissed for failure to state a claim, not for being frivolous); Allen v. Diaz, 4 || No. 21-cv-0602-LAB-MDD (S.D. Cal. July 29, 2022), ECF 29 (same); Diaz v. Madden, 5 || No. 20-cv-2147-GPC-BGS (S.D. Cal. Dec. 17, 2021), ECF 18 (same). 6 Accordingly, the Court finds no reason to deny Shallowhorn the ability to continue 7 || proceeding IFP on appeal and CERTIFIES that this appeal is not frivolous or taken in bad 8 || faith. The Clerk is directed to notify the Ninth Circuit Court of Appeals of this order. See 9 || Fed. R. App. P. 24(a)(4). 10 || Dated: May 3, 2024 12 Andrew G. Schopler United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2