Sanders v. Fitness International LLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Reginald Sanders, No. CV-23-00481-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Fitness International LLC, et al., 13 Defendants. [14] 15 On January 29, 2024, the Court of Appeals referred this matter back to this Court 16 “for the limited purpose of determining whether in forma pauperis status should continue 17 for this appeal or whether the appeal is frivolous or taken in bad faith.” (Doc. 55 at 1.) 18 Also pending before the Court are Plaintiff’s Motion for Leave to Proceed In Forma 19 Pauperis on Appeal and Motion for Preparation of Reporter’s Transcript In Forma 20 Pauperis. (Doc. 57; Doc. 58.) This Order addresses all three issues. The Court finds that 21 Plaintiff’s appeal is frivolous and denies both motions. 22 Federal Rule of Appellate Procedure 24(a)(1) provides that “a party to a district23 court action who desires to appeal in forma pauperis must file a motion in the district 24 court.” The motion must be accompanied by an affidavit showing the party’s inability to 25 pay or to give security for fees and costs, claiming an entitlement to redress, and stating 26 the issues that the party intends to present on appeal. Fed. R. App. P. 24(a)(1)(A)–(C). A 27 court has no discretion to allow a litigant to appeal in forma pauperis if the litigant has 28 not met the statutory criteria for such status. See Stanley v. Swope, 99 F.2d 308 , 308–09 1 (9th Cir. 1938). These procedural requirements have not been met because Plaintiff failed 2 to include an affidavit showing his inability to pay and the issues he plans to present on 3 appeal with his Motion for Leave to Proceed In Forma Pauperis on Appeal. (Doc. 57.) 4 The request also may be denied on the merits. “An appeal may not be taken in 5 forma pauperis if the trial court certifies in writing that it is not taken in good faith.” [6] 28 U.S.C. § 1915 (a)(3). An appeal is taken in good faith if it seeks review of any issue 7 that is non-frivolous. Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). A 8 “good faith” appeal must seek review of at least one “non-frivolous” issue or claim. Id. 9 An issue is “frivolous” where it “lacks an arguable basis either in law or in fact.” Neitze 10 v. Williams, 490 U.S. 319, 325 (1989). Legally frivolous claims are those “based on an 11 indisputably meritless legal theory,” such as claims against defendants who are immune 12 from suit or for infringement of a legal interest that clearly does not exist. Id. at 327 . 13 Factually frivolous claims are those premised on “clearly baseless” factual contentions, 14 such as claims “describing fantastic or delusional scenarios.” Id. at 327-28 . 15 Plaintiff does not explain which issues he plans to present on appeal; rather, he 16 vaguely asserts that the “dismissal order contains manifest errors of law warranting 17 reversal by the Ninth Circuit.” (Doc. 48.) 18 Briefly, and by way of background, Plaintiff brought his now-dismissed complaint 19 against his gym, Fitness International, LLC d/b/a Esporta Fitness alleging that he was 20 “denied the full and equal enjoyment of [his gym’s] public accommodation due to [his] 21 sex.” (Doc. 1 at 1.) He further alleges that the “general manager and office manager (both 22 female) discriminated against [him] when [he] requested their assistance” with an 23 altercation involving his ex-girlfriend. (Id.) He further complains that the “facility did 24 minimal to provide film of incident to Mesa Police Department.” (Id.) Defendants filed a 25 motion to dismiss asserting that Plaintiff’s public accommodation, negligence and 26 retaliation claims all fail as a matter of law. The Court agreed and found that nothing in 27 Plaintiff’s response brief, or the arguments he raised at Oral Argument could save 28 Plaintiff’s claims from being dismissed without leave to amend. 1 With respect to his public accommodation and retaliation claims, Plaintiff 2 conceded at Oral Argument that he could “either not work out, drive five, ten miles away 3 to a different facility or come later on at night when I know that they weren’t there.” 4 (Doc. 38 at 93:3-6.) That concession undoubtedly demonstrates that Plaintiff was not 5 denied the full benefits or enjoyment of a public accommodation in violation of 42 6 U.S.C. § 2000a(a) and no amendment can save his claim. With respect to his negligence 7 claim, Plaintiff failed to establish what duty of care the gym owed to him and supposedly 8 breached. At Oral Argument, Plaintiff explained the duty he believed that was owed was 9 “as a member[,] paying member, to basically protect the members in the gym and not 10 allow people from the outside to just enter the gym and approach their members.” (Doc. 11 38 at 80:6-9.) But there is no such duty recognized under Arizona law. Plaintiff, while 12 upset about an alleged altercation with his ex-girlfriend and the way his gym allegedly 13 handled the altercation, are not enough for him to claim viable causes of action, and his 14 claims are legally frivolous because no legal interest exists. Neitze, 490 U.S. at 327 . 15 Because the Court has not found that “at least one issue or claim” Plaintiff 16 presents for appeal is “non-frivolous,” Hooker, 302 F.3d at 1092 , the Court certifies that 17 the proposed appeal is not taken in good faith under 28 U.S.C. § 1915 (a)(3). For similar 18 reasons, the appeal also does not present a substantial question within the meaning of 28 19 U.S.C. § 753 (f) and Plaintiff’s Motion for Preparation of Reporter’s Transcript In Forma 20 Pauperis (Doc. 58) will also be denied. 21 Pursuant to Rule 24(a)(4), Fed. R. App. P., the Court directs the Clerk to 22 immediately notify Plaintiff and the Ninth Circuit Court of Appeals of this Order. The 23 Court advises Plaintiff that he may seek leave to proceed in forma pauperis on appeal by 24 filing such a motion in the Ninth Circuit Court of Appeals within 30 days of service of 25 this Order. Fed. R. App. P. 24(a)(5). Any such motion “must include a copy of the 26 affidavit filed in the district court and the district court's statement of reasons for its 27 action.” Id. 28 IT IS ORDERED denying Plaintiff’s Motion for Leave to Proceed In Forma 1 || Pauperis on Appeal (Doc. 57). 2 IT IS FURTHER ORDERED denying Plaintiffs Motion for Preparation of 3 || Reporter’s Transcript In Forma Pauperis (Doc. 58). 4 Dated this 6th day of February, 2024. [5] ° Wichael T. Fibula Michael T. Liburdi 8 United States District Judge [27] 28 CC: Ninth Circuit Court of Appeals -4-