Johnson v. Contra Costa County Clerk Recorder

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 WAYNE JOHNSON, Case No. 21-cv-07579-JSC 8 Plaintiff, ORDER RE: MOTION TO RESCIND 9 v. PLAINTIFF’S IN FORMA PAUPERIS STATUS ON APPEAL 10 ESA EHMEN KRAUSE, et al., Re: Dkt. No. 32 Defendants. [12] 13 The Court granted Defendants’ motion to dismiss and entered judgment on August 11, 14 2022. (Dkt. Nos. 28, 29.)1 Plaintiff’s appeal to the Ninth Circuit Court of Appeals was docketed 15 on August 24, 2022. (Dkt. Nos. 30, 31.) Plaintiff proceeded in this case in forma pauperis 16 (“IFP”), meaning without paying the ordinary filing fee. Before the Court is Defendants’ motion 17 to rescind Plaintiff’s IFP status. (Dkt. No. 32.) After carefully considering the briefing, the Court 18 concludes that oral argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b), VACATES the 19 October 6, 2022 hearing, and DENIES the motion. 20 DISCUSSION 21 A court may revoke a plaintiff’s IFP status on appeal if it “certifies that the appeal is not 22 taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis 23 and states in writing its reasons for the certification or finding.” Fed. R. App. P. 24(a)(3)(A); see 24 Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (noting that district court may revoke 25 IFP status if appeal as a whole is frivolous, not for particular claims). “‘Not taken in good faith’ 26 means ‘frivolous.’” Gray v. Hamilton, No. C 10-4614, 2010 WL 4281812 , at *2 (N.D. Cal. Oct. [27] 1 25, 2010); see Ellis v. United States, 356 U.S. 674, 674-75 (1958) (“In the absence of some 2 || evident improper motive, the applicant’s good faith is established by the presentation of any issue 3 || that is not plainly frivolous. The good-faith test must not be converted into a requirement of a 4 || preliminary showing of any particular degree of merit.”). 5 Across his original and amended complaints, Plaintiff brought claims against Contra Costa 6 || County Clerk-Recorder Deborah Cooper, the County’s Court Reporter Patricia D. Malone, the 7 County’s Chief Probation Officer Esa Ehmen-Krause, and the County. (Dkt. Nos. 1, 9, 13.) The 8 Court dismissed the claims against Ms. Cooper and Ms. Malone on the basis of absolute quasi9 || judicial immunity. (Dkt. No. 14.) It dismissed the claims against Ms. Ehmen-Krause in part 10 || because of absolute judicial immunity and in part because of deficient factual allegations. (Dkt. 11 No. 28.) It dismissed the claims against the County because of deficient factual allegations. (/d.) 12 || Thus, while courts have certified appeals as frivolous due to the defendants’ immunity, that is not 5 13 || the only issue presented in Plaintiff's appeal. See Order Revoking Plaintiffs In Forma Pauperis 14 Status on Appeal, Fanslow v. County of Sonoma, No. C-11-1955-EMC (N.D. Cal. Sept. 6, 2011), 3 15 Dkt. No. 21 at 2-4 (certifying appeal was frivolous in part because defendant had quasi-judicial a 16 immunity); James v. Townsley, No. CV—11—-050-EFS, 2011 WL 2559629 , at *1 (E.D. Wash. June 3 17 28, 2011) (same); Gray, 2010 WL 4281812 , at *2 (same). Therefore, Plaintiff's appeal is not 18 || frivolous as a whole. See Hooker, 302 F.3d at 1092 . 19 Accordingly, Defendants’ motion is DENIED. 20 This Order disposes of Docket No. 32. 21 IT IS SO ORDERED. 22 || Dated: September 29, 2022 [23] Dogue Stok 25 JACQUELINE SCOTT CORLE United States District Judge