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Virgil Popescu v. City of San Diego

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 6, 2012

VIRGIL POPESCU
PLAINTIFF,
v.
CITY OF SAN DIEGO, PARKING MANAGEMENT DIVISION AND ROBERT PAGAN #8073,
DEFENDANTS.

The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge, U.S. District Court

ORDER: (1) DENYING IN FORMA PAUPERIS STATUS ON APPEAL; AND (2) DENYING FEES FOR TRANSCRIPT ON APPEAL [ECF No. 119].

I. INTRODUCTION

On January 3, 2011, Plaintiff filed a motion for waiver of costs on appeal. [ECF No. 119.] In Plaintiff's motion, he states he is indigent and asks the Court to waive the payment of costs and fees as well as transcripts on appeal. Id. at 2-3. Plaintiff's motion is DENIED. The Court finds Plaintiff's appeal is not taken in good faith and does not present a substantial question.

II. STANDARD OF REVIEW

A. In Forma Pauperis Status On Appeal

In accordance with 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." The decision to allow an appeal to proceed in forma pauperis remains within the jurisdiction of the trial court after the filing of an appeal.. In re Rains, 428 F.2d 893, 904 (9th Cir.2005).

B. Fees for Transcript On Appeal

As required by 28 U.S.C § 753(f), the judge must determine that an appeal by a person "permitted to appeal in forma pauperis" is not frivolous, but presents a substantial question . Henderson, 734 F.2d 483, 484 (9th Cir. 1984).

III. DISCUSSION AND ORDER THEREON

In this case, the Court finds Plaintiff is not taking this appeal in good faith following the issuance of the Court's Findings of Fact and Conclusions of law filed on December 7, 2011, in which the Court found after considering live testimony, documentary evidence, law and argument presented in a three-day bench trial before the Honorable William McCurine, Jr. that Plaintiff's argument in support of his discrimination claim was "absurd on its face, reprehensible, shameless and utterly foolish." ECF No. 114 at 3:12-4:6. The Court also found one of Plaintiff's arguments in support of his claim "so devoid of credibility as to border on perjury." Id. at 4:13-15. Accordingly, section 1915(a)(3) prevents the grant in forma pauperis status to Plaintiff on appeal.

As to Plaintiff's request for the payment of transcript fees on appeal, the Court finds section 753 similarly does not permit public payment of transcript fees because Plaintiff's appeal is frivolous and fails to present a substantial question. Plaintiff attempted to establish at trial that Defendant, a parking enforcement officer with the last name of "Pagan" discriminated against him by issuing parking tickets to Plaintiff's car, which had religious and political bumper stickers attached to it. Plaintiff's proof in support of this claim was the very existence of Defendant's last name - Pagan, which as the Court noted in its Findings of Fact and Conclusions of Law meant "in Plaintiff's mind that Defendant is an atheist and hostile to Christians." ECF No. 114 at 12-19. At the conclusion of the bench trial, the Court ruled Plaintiff failed to meet his burden of proving Officer Pagan violated his constitutional rights by issuing one or more parking violations in a discriminatory manner based on Plaintiff's political or religious beliefs. ECF No. 114 at 7:4-7. This issue is not reasonably debatable. See Washburn v. Fagan, 2007 WL 2043854, at*2 (N.D. Cal. 2007) (explaining there is a substantial question when the issue before the appellate court is reasonably debatable.); see also Gonzales v. Riddle, 2008 WL 4723779, at *1 (E.D. Cal. 2008) (stating that when considering whether an appeal presents a substantial question, the trial court may take into account the statement of issues and related material).

For the reasons set forth herein, Plaintiff's motion for in forma pauperis status on appeal and for payment of transcript fees on appeal is DENIED.

IT IS SO ORDERED.

20120106

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