UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
April 5, 2013
JAVIER MENDEZ VELAZQUEZ,
DEA HEADQUARTERS UNIT; ET AL., DEFENDANTS.
The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge
ORDER RESPONDING TO NOTICE OF REFERRAL (Dkt. No. 47)
For the following reasons, the Court certifies Plaintiff's appeal is frivolous, and his IFP status is REVOKED.
Plaintiff Javier Mendez Velasquez is currently serving a life sentence at the Soledad Correction Facility. Plaintiff brought this action on April 15, 2011 asserting Defendants failed to comply with a document request pursuant to the Freedom of Information Act and Privacy Act ("FOIA"). (Dkt. No. 1.) On May 4, 2011, Plaintiff filed a motion for leave to proceed in forma pauperis, which was granted by the court on February 16, 2012. (Dkt. Nos. 2, 7.) On February 25, 2013, the District Court granted Defendants' motion to dismiss Plaintiff Javier Mendez Velazquez's complaint for lack of subject matter jurisdiction. (Dkt. No. 44.) The Court found that it "cannot provide relief to remedy the improper withholding of documents when the responsive agency records have already been produced." (Id. at 5, citing Sanders v. Obama 729 F. Supp. 2d 148, 158 (D.D.C. 2010) aff'd sub nom. Sanders v. U.S. Dept. of Justice, 10-5273, 2011 WL 1769099 (D.C. Cir. Apr. 21, 2011).) Accordingly, the Court found Plaintiff's claim moot and dismissed the complaint for lack of subject matter jurisdiction. (Id.)
On March 11, 2013, Plaintiff Velazquez filed a notice of appeal with the Ninth Circuit. (Dkt. No. 46.) On March 15, 2013, the U.S. Court of Appeals for the Ninth Circuit submitted a referral notice to the District Court for the limited purpose of determining whether in forma pauperisstatus should continue for this appeal or whether the appeal is frivolous or taken in bad faith. (Dkt. No. 49.)
"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). Federal Rule of Appellate Procedure 24(a)(3) provides that a party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, to proceed on appeal in forma pauperis without further authorization, unless: (A) the district court--before or after the notice of appeal is filed--certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding; or (B) a statute provides otherwise.
Fed. R. App. P. 24(a)(3). A good faith inquiry does not require a preliminary showing of any particular degree of merit. Ellis v. U.S., 356 U.S. 674, 674 (1958). In the absence of an improper motive, good faith is established by the presentation of any issue which is not plainly frivolous. Id. For purposes of 28 U.S.C. § 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
There is no indication Plaintiff Velazquez has an improper motive for appealing the District Court's motion to dismiss his complaint. However, Velazquez has not made the presentation of any issue to be raised on appeal. Under similar circumstances, the Court in Gilbert v. U.S. held that where the appellant made no showing regarding the merits of his appeal, the district court properly denied his application for appeal, but without prejudice to its renewal. 278 F.2d 61, 62 (9th Cir. 1960) ("[T]he affidavit filed in the district court made no mention of any issue to be raised on appeal, frivolous or otherwise. The affidavit presented in the district court was therefore inadequate."). Here, Velazquez has not stated any issue in which he desires to raise upon appeal, frivolous or otherwise. As the appeal lacks any arguable basis in law or fact, the appeal is determined to be frivolous.
Based on the foregoing reasons, Plaintiff's appeal is frivolous because it fails to state any arguable basis in law or fact. Accordingly, it is HEREBY ORDERED that: (1) Plaintiff's in forma pauperis status is REVOKED for purposes of the appeal; and (2) the Clerk of Court is DIRECTED to notify the Ninth Circuit Court of Appeals that the Court certifies that Plaintiff's appeal is frivolous pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
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