United States District Court, N.D. California
August 22, 2014
MEDHEALTH NURSING, et al., Plaintiffs,
CALIFORNIA DEPARTMENT OF PUBLIC HEALTH, et al., Defendants.
ORDER DENYING MOTION FOR EXTENSION OF TIME AND DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
CLAUDIA WILKEN, District Judge.
Plaintiff Danilo Mallari, proceeding pro se, seeks to appeal this Court's July 21, 2014, order dismissing this case with prejudice. See Docket No. 44, Notice of Appeal. He moves this Court for an extension of time to file his opening brief, see Docket No. 45, Motion for Extension of Time, and for leave to proceed with his appeal in forma pauperis (IFP). See Docket No. 46, Motion for Leave to Proceed IFP. For the reasons set forth below, Mallari's motions are DENIED.
I. MOTION FOR EXTENSION OF TIME
Mallari seeks an additional fifteen (15) days' time to file his opening brief. The motion is not properly before this Court. The deadline for Mallari's opening brief will be set forth in the time schedule order issued by the Court of Appeals.
II. MOTION FOR LEAVE TO PROCEED IFP
"[A] party to a district court action who desires to appeal in forma pauperis must file a motion in the district court." Fed. R. App. P. 24(a)(1). "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); see also Hooker v. American Airlines , 302 F.3d 1091, 1092 (9th Cir. 2002) (construing "not in good faith" to mean frivolous). An appeal is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams , 490 U.S. 319, 325 (1989). "If the district court denies the motion, it must state its reasons in writing." Fed. R. App. P. 24(a)(2).
In the July 21, 2014 Order, the Court (1) dismissed Mallari's sole federal claim, alleging a violation of 42 U.S.C. § 1983, because Mallari lacked standing to bring the claim; (2) dismissed his new state law claims for negligence and intentional infliction of emotional distress (IIED) because the Court had precluded him from asserting new claims in his second amended complaint, and because he had failed to allege sufficient facts to state claims for negligence and IIED; and (3) dismissed his claim under title 22, section 74669(d) of the California Code of Regulations because Mallari failed to demonstrate that any state or federal court has recognized that a plaintiff may bring a claim against California Department of Public Health employees for violating section 74669(d), and because Mallari acknowledged that he had not exhausted his administrative remedies under state law.
There are no valid grounds upon which an appeal can be based. Accordingly, Mallari's application is DENIED, and this Court CERTIFIES that his appeal is frivolous and therefore is not taken in good faith.
For the reasons set forth above, Mallari's motion for extension of time (Docket No. 45) is DENIED, and his motion for leave to proceed IFP (Docket No. 46) is DENIED. Pursuant to Federal Rules of Appellate Procedure 24(a)(4)(A) and (B), the Clerk shall notify the Ninth Circuit that this Court has denied Mallari's motion to proceed IFP and certified that his appeal is not taken in good faith. Pursuant to Rule 24(a)(5), Mallari may file a motion for leave to proceed IFP on appeal in the Court of Appeals within thirty (30) days after service of notice of this order.
IT IS SO ORDERED.