UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
December 28, 2009
ANTHONY MARTINI; ANNETTE MARTINI, PLAINTIFFS,
ANDREW J. GUILFORD, AS AN INDIVIDUAL; LISA BREDAHL, AS AN INDIVIDUAL, DEFENDANTS.
The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
On October 14, 2009, Plaintiffs Anthony Martini and Annette Martini (collectively "Plaintiffs") filed a complaint in the U.S. District Court for the Southern District of California, naming as defendants the Honorable Andrew J. Guilford, a U.S. District Judge for the Central District of California, and Lisa Bredahl, Judge Guilford's Court Clerk. (Doc. No. 1.) After reviewing the complaint, the Court noted that the Central District of California is the proper venue for this action, and ordered Plaintiffs to show cause as to why the Court should not dismiss the complaint for improper venue. (Doc. No. 3.) The Court also noted that Defendants appear to enjoy absolute immunity for their acts on which the complaint is based, and ordered Plaintiffs to show cause as to why the Court should not dismiss the complaint on grounds of judicial immunity. (Id.) On November 17, 2009, Plaintiffs filed a response and opposition to the order to show cause. (Doc. No. 4.) On November 24, 2009, the Court dismissed the case for improper venue pursuant to 28 U.S.C. § 1406(a). (Doc. No. 5.) The Court also noted that Defendant Guilford's actions are protected by absolute immunity. (Id.) On December 22, 2009, Plaintiffs filed a notice of appeal and a motion for leave to appeal in forma pauperis. (Doc. Nos. 7 & 8.)
A party seeking to proceed in forma pauperis on appeal must file a motion with the district court and attach an affidavit that "(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs; (B) claims an entitlement to redress; and (C) states the issues that the party intends to present on appeal." Fed. R. App. P. 24(a)(1). Pursuant to 28 U.S.C. § 1915(a)(3), "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." An appeal is taken in good faith for purposes of in forma pauperis petition if at least one issue or claim is found to be non-frivolous. Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). An issue is "frivolous" if it has no arguable basis in fact or law. See O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990).
The Court dismissed Plaintiffs' complaint for improper venue. (Doc. No. 5.) Additionally, the Court noted that Defendants' actions are protected by absolute immunity. (Id.) Instead of filing their complaint in the proper district, Plaintiffs initiated this appeal. (Doc. No. 7.) In the affidavit accompanying Plaintiffs' motion for leave to appeal in forma pauperis, Plaintiffs claim that "Defendants did not Respond and Plaintiffs were not given an Opportunity to appear in Court to proceed with their Legal Complaint." (Doc. No. 8 at 1.) The Court notes, however, that since Defendants were never served in this action, they had no duty to respond. The Court concludes that Plaintiffs' appeal is frivolous and not taken in good faith. O'Loughlin v. Doe, 920 F.2d at 617. Further, this Court CERTIFIES that any in forma pauperis appeal from this Court's order dismissing the action (Doc. No. 5) would not be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir.1977). Accordingly, the Court DENIES Plaintiffs' motion for leave to appeal in forma pauperis.
IT IS SO ORDERED.
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