Ed Vallejo v. California Department of Motor Vehicles

Case 2:21-cv-09941-ODW-RAO Document 27 Filed 03/11/22 Page 1 of 3 Page ID #:125 O [77] 88 United States District Court 99 Central District of California [1100] 1111 ED ENRIQUE VALLEJO Case № 2:21-cv-09941-ODW (RAOx) 1122 Plaintiff, ORDER REVOKING IN FORMA 1133 v. PAUPERIS STATUS FOR APPEAL 1144 CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, et al., [1155] 1166 Defendants. [1188] 1199 Pro se Plaintiff Ed Vallejo brought this action against the California Department 2200 of Motor Vehicles and its director, Steven Gordon, as well as the City of Glendale, for 2211 alleged constitutional violations stemming from a traffic stop by a City of Glendale 2222 police officer. (See Compl., ECF No. 1.) Vallejo also requested to proceed in forma 2233 pauperis. (Req., ECF No. 3.) On January 20, 2022, Magistrate Judge Oliver granted 2244 Vallejo’s request but dismissed his Complaint with leave to amend for failing to state 2255 a viable claim. (Order Dismiss Compl., ECF No. 12.) After Vallejo failed to cure the 2266 deficiencies in his Complaint, the Court dismissed this action with prejudice. (See 2277 First Am. Compl., ECF No. 14; Order Summ. Dismissal, ECF No. 19.) The Court [2288] Case 2:21-cv-09941-ODW-RAO Document 27 Filed 03/11/22 Page 2 of 3 Page ID #:126 1 addressed the relevant factual and procedural background in its Order for Summary 2 Dismissal and incorporates that discussion here by reference. 3 On February 1, 2022, Vallejo filed a Notice of Appeal to the Ninth Circuit 4 Court of Appeals, indicating that this Court granted Vallejo in forma pauperis status. 5 (Notice Appeal, ECF No. 21.) On March 9, 2022, the Ninth Circuit Court of Appeals 6 referred the matter to this Court “for the limited purpose of determining whether in 7 forma pauperis status should continue for this appeal or whether the appeal is 8 frivolous or taken in bad faith.” (Referral Notice, ECF No. 26.) For the reasons set 9 forth below, the Court finds Vallejo’s appeal is not taken in good faith and therefore 10 REVOKES Vallejo’s in forma pauperis status. 11 “A party who was permitted to proceed in forma pauperis in the district-court 12 action . . . may proceed on appeal in forma pauperis without further authorization, 13 unless: (A) the district court—before or after the notice of appeal is filed—certifies 14 that the appeal is not taken in good faith or finds that the party is not otherwise 15 entitled to proceed in forma pauperis and states in writing its reasons for the 16 certification or finding.” Fed. R. App. P. 24(a)(3); see also 28 U.S.C. § 1915 (a)(3) 17 (“An appeal may not be taken in forma pauperis if the trial court certifies in writing 18 that it is not taken in good faith.”). The Supreme Court has interpreted “good faith” to 19 mean that the appeal is “not frivolous.” Coppedge v. United States, 369 U.S. 438 , 20 445, 451 (1962). Thus, an appeal is taken in “good faith” for this purpose where it 21 seeks review of any issue that is “non-frivolous.” Hooker v. Am. Airlines, 302 F.3d 22 1091, 1092 (9th Cir. 2002). In turn, an issue is frivolous if it has “no arguable basis in 23 fact or law.” O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990). 24 This Court previously granted Vallejo’s request to proceed in forma pauperis 25 but found that Vallejo failed to state a viable claim in his Complaint. (See Order 26 Dismiss Compl. 2–4.) Accordingly, the Court dismissed Vallejo’s Complaint with 27 leave to amend, noting that, “Although the Court is skeptical that Plaintiff can amend 28 his Complaint to state a viable federal constitutional claim . . . it will afford him an [2] Cas@ 2:21-cv-09941-ODW-RAO Document 27 Filed 03/11/22 Page3of3 Page ID #:127 1 || opportunity to try to do so.” (/d. at 5.) Nevertheless, in his First Amended Complaint, 2 || Vallejo again recited inapplicable legal authority and again failed to name a defendant 3 || against which a viable claim could be asserted. (See First Am. Compl.; Order Summ. 4|| Dismissal.) Vallejo did not supplement his pleading to address the deficiencies 5 || identified by the Court or indicate any additional facts that he might add to a further 6 || amendment to cure the noted deficiencies. Accordingly, pursuant to 28 U.S.C. 7|| § 1915(a)(3), any appeal in this matter by Vallejo would not be taken in good faith. 8 The Court therefore certifies that this appeal is not taken in good faith and 9 || REVOKES Vallejo’s in forma pauperis status. The Court directs the Clerk to notify 10 || the Ninth Circuit Court of Appeals of this certification pursuant to Federal Rule of 11 || Appellate Procedure 24(a)(4). [12] 13 IT IS SO ORDERED. [14] 15 March 11, 2022 ss 16 fy Géedllii 18 OTIS D. WRIGHT, II 9 UNITED STATES DISTRICT JUDGE