Wentworth v. California Connections Academy

[9] 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA [12] DAWN WENTWORTH, et al., Case Nos. 21-cv-01926-BAS-AGS 13 21-cv-01927-BAS-AGS Plaintiffs, 21-cv-01928-BAS-AGS 14 21-cv-01929-BAS-AGS 21-cv-01930-BAS-AGS 15 v. 21-cv-01931-BAS-AGS 21-cv-01932-BAS-AGS 16 CALIFORNIA CONNECTIONS ACADEMY, ORDER DISCONTINUING IN 17 FORMA PAUPERIS STATUS FOR Defendant. 18 APPEAL [19] AND CONSOLIDATED CASES [21] 22 The Court granted Ms. Dawn Wentworth permission to proceed with these 23 consolidated cases in forma pauperis—without paying the filing fees. (ECF No. 5.) After 24 the Court dismissed the Complaints with leave to amend, Ms. Wentworth filed a Notice of 25 Appeal to the Ninth Circuit. (ECF No. 10.) The Ninth Circuit requested this Court address 26 “whether in forma pauperis status should continue for this appeal or whether the appeal is 27 frivolous or taken in bad faith.” (ECF No. 13.) For the following reasons, the Court 28 discontinues the in forma pauperis status for appeal. 1 A party granted leave to proceed in forma pauperis in the district court may continue 2 in that status on appeal unless the district court certifies the appeal is not taken in good 3 faith. Fed. R. App. P. 24(a); accord 28 U.S.C. § 1915 (a)(3). “Not taken in good faith” 4 means “frivolous.” Ellis v. United States, 356 U.S. 674 , 674–75 (1958); see also Hooker 5 v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (noting revocation of in forma 6 pauperis status is appropriate where the district court finds the appeal to be frivolous). An 7 issue is “frivolous” if it has “no arguable basis in fact or law.” See O’Loughlin v. Doe, 920 8 F.2d 614 , 617 (9th Cir. 1990). “If at least one issue or claim is found to be non-frivolous, 9 leave to proceed in forma pauperis on appeal must be granted for the case as a whole.” 10 Hooker, 302 F.3d at 1092 . 11 At the outset, the Court is skeptical that Ms. Wentworth is appealing a final order. 12 The Court’s order screening the Complaints expressly dismissed them “without prejudice” 13 and with leave to file “any amended complaint” by a deadline. (Screening Order 6:24–7:1, 14 ECF No. 9 (emphasis omitted).) “A dismissal of a complaint without prejudice is not a 15 final order.” Martinez v. Gomez, 137 F.3d 1124, 1125 (9th Cir. 1998). 16 Further, the Court directed the Clerk of Court to close the case and enter judgment 17 dismissing the action without prejudice if no amended pleading was filed. (Screening 18 Order 7:15–16.) However, because Ms. Wentworth filed a notice of appeal challenging 19 the Court’s Screening Order before the deadline to amend lapsed, the Court and Clerk took 20 no further action, and no judgment has been entered. See Nat’l Ass’n of Home Builders v. 21 Norton, 325 F.3d 1165, 1167 (9th Cir. 2003) (“As a general rule, ‘[o]nce a notice of appeal 22 is filed, the district court is divested of jurisdiction over the matters being appealed.’”). 23 Hence, the Court is doubtful that jurisdiction exists for the appeal, but recognizes the Ninth 24 Circuit may nonetheless treat the Screening Order as a final order. Cf. Cooper v. Ramos, [25] 704 F.3d 772, 777 (9th Cir. 2012) (determining court intended its order to be final where 26 clerk also terminated the case, which did not occur here). 27 Regardless, the Court is persuaded Ms. Wentworth’s appeal is not taken in good 28 faith. The Court’s Screening Order broadly construed the Complaints to raise a claim under 1 || Title VI of the Civil Rights Act and explained why Ms. Wentworth’s minor child is the 2 || proper plaintiff for such a claim. (Screening Order 5:11-6:11.) Yet, the Court explained 3 ||that Ms. Wentworth could not represent her minor child as a pro se litigant under Ninth 4 || Circuit precedent. (/d.) Her Notice of Appeal challenging this finding—along with the 5 || Court’s other determinations in the Screening Order—has no arguable basis in fact or law. 6 || See O'Loughlin, 920 F.2d at 617. The Court thus finds the appeal is not taken in good 7 faith. See 28 U.S.C. § 1915 (a)(3). 8 Therefore, the Court DISCONTINUES the in forma pauperis status for appeal. The 9 || Court directs the Clerk to notify the Ninth Circuit Court of Appeals in Case No. 22-55568 10 of this certification pursuant to Federal Rule of Appellate Procedure 24(a)(4). 11 IT IS SO ORDERED. 12 A. 13 || DATED: July 27, 2022 sii A Hipha. 6 14 United States District Judge [28] _3-