UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 10, 2012
JUDICIAL COUNCIL OF CALIFORNIA, ET AL., DEFENDANTS.
APPEAL NO. 12-15724
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER RECOMMENDING DENIAL OF PLAINTIFF'S REQUEST TO FILE APPEAL IN FORMA PAUPERIS (Doc. 94)
In response to this Court's issuance of an order to attorney Ralston L. Courtney to show cause why he should not be held in contempt for his failure to pay sanctions ordered by this Court, Plaintiff Janetta Sconiers, proceeding pro se, appeals to the United States Court of Appeals for the Ninth Circuit. Plaintiff, who paid the filing fee in District Court, requests waiver of the filing fee for the appeal. Because Plaintiff lacks standing to pursue an appeal on behalf of her former attorney, this Court recommends that Plaintiff's request for waiver of the filing fee be denied.
I. Procedural Background
As part of a judgment entered December 14, 2011, this Court sanctioned Plaintiff's attorney, Ralston L. Courtney, pursuant to F.R.Civ.P. 11, for failing to conduct a reasonable and competent inquiry regarding (a) Plaintiff's motives for proceeding with the complaint; (b) the legal sufficiency of the asserted claims; and (c) the factual sufficiency of the asserted claims. Doc. 71. The Court ordered Courtney to pay a penalty of $5000.00 to the Court's Nonappropriated Fund no later than January 14, 2012. Doc. 71. The Court reprimanded Courtney for his conduct, which degraded and impugned the integrity of the Court and interfered with its administration of justice. Doc. 71.
Plaintiff, proceeding pro se, filed a notice of appeal on January 10, 2012. The appeal documents listed Ralston Courtney as Plaintiff's "former attorney." In its recommendation that the Court of Appeals deny Plaintiff permission to file her January appeal in forma pauperis, this Court noted:
Plaintiff purports to bring this appeal in propria persona on behalf of both herself and her former attorney Ralston L. Courtney. Because Plaintiff is not an attorney, she may not represent Mr. Courtney in this appeal.
Courtney does not represent Plaintiff in her pending appeals. Courtney neither moved for reconsideration nor appealed that portion of the December 14, 2011 judgment reprimanding him and imposing sanctions. Courtney has not paid the $5000.00 penalty.
On March 1, 2012, the Magistrate Judge issued an order to show cause why Courtney should not be held in contempt for his failure to pay the sanctions that were due January 15, 2012. On March 15, 2012, Courtney responded to the order to show cause, claiming that, as a result of recent serious illness, he was not then practicing law. Doc. 91. On March 21, 2012, the Magistrate Judge declined to excuse Mr. Courtney from the scheduled hearing and questioned whether Courtney had actually prepared or reviewed the objections, which appeared more consistent with Plaintiff Sconier's prior submissions than with the work of an attorney. Noting that the sanctions against Courtney arose from conduct prior to his current illness and that Courtney had repeatedly flouted the authority of this Court and had failed to appear at three scheduled order to show cause hearings in the action that gave rise to the sanctions against him, the Magistrate Judge again ordered Courtney to appear at the scheduled hearing to show cause why he should not be held in contempt. To ensure that Courtney himself was aware of the pending proceedings, the Magistrate Judge directed the Clerk of Court to mail a copy of the order directly to Courtney. On March 23, 2012, Plaintiff Janetta Sconiersappealed the order.
II. Plaintiff Lacks Standing to Appeal Sanctions Against Courtney
Except for certain cases in which the appellant has previously been permitted to proceed in forma pauperis, a party to a district-court action seeking to proceed in forma pauperis in an appeal must file a motion in District Court, appending an affidavit that (a) shows the party's inability to pay or to give security for fees and costs in the detail prescribed by Form 4 in the appendix of the Appellate Rules of Civil Procedure; (b) claims entitlement to redress; and (c) states the issues that the party intends to present on appeal. F.R.App.P. 24(a)(1). Because Plaintiff lacks standing to appeal the sanctions against Courtney, she cannot establish entitlement to redress. See, e.g., Tracy v. United States Department of Treasury, 301 Fed.Appx. 675, 675 (9th Cir. 2008). This means that she is not entitled to proceed in forma pauperis in this appeal.
An attorney is the proper party to appeal a sanctions order against himself. Estate of Bishop v. Bechtel Power Corp., 905 F.2d 1272, 1275 9th Cir. 1990). Accord Cabrera v. City of Huntington Park, 159 F.3d 374, 382 (9th Cir. 1998). See also Okoro v. City of Oakland, California, 233 Fed.Appx. 639, 641-42 (9th Cir. 2007); Berg v. Popham, 412 F.3d 1122, 1130 (9th Cir. 2005). A party may only appeal to protect its own interests, especially when the other party is free to appeal on its own behalf. Estate of Bishop, 905 F.2d at 1276. "An indirect financial stake in another party's claims is insufficient to create standing on appeal." Id., quoting Morrison-Knudsen Co., Inc/ v. CHG Int'l, Inc., 811 F.2d 1209, 1214 (9th Cir. 1987), cert. dismissed, 488 U.S. 935 (1988). A party has no pecuniary or other sufficient interest in sanctions imposed against his attorney to confer standing to appeal. Marshak v. Tonetti, 813 F.2d 13, 21 (1st Cir. 1987). Accord Estate of Bishop, 905 F.2d at 1276. See also Flanagan v. Benicia Unified School District, 404 Fed.Appx. 187, 187 (9th Cir. 2010).
III. Plaintiff's Remaining Claims Are Unrelated to Order Appealed
Plaintiff's remaining claims are both unrelated to the Order to Show Cause that is the stated subject of this appeal and duplicative of her claims in pending Appeal No. 12-15176. As such, the remaining claims are frivolous. Granting an appellant permission to proceed in forma pauperis is inappropriate when the claims are frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the District Court finds the appeal to be frivolous).
Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir.), cert. denied, 393 U.S. 891 (1968); Williams v. Marshall, 795 F.Supp. 978, 978-79 (N.D. Cal. 1992). A federal court may dismiss a claim filed in forma pauperis prior to service if it is satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(d); see Sully v. Lungren, 842 F.Supp. 1230, 1231 (N.D. Cal. 1994).
IV. Conclusion and Recommendation
In accordance with the foregoing analysis, the District Court hereby RECOMMENDS that Plaintiff's motion to proceed with Appeal No. 12-724 in forma pauperis be denied.
IT IS SO ORDERED.
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