United States District Court, District of Montana, Helena Division
August 12, 2014
DAVID LAWRENCE, Plaintiff,
JOHN PARKER, DOUG MAHLUM, BRUCE MCDERMOTT, FRANK DONATO, BOB EDWARDS, and BRAD CUSTER, Defendants.
FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Keith Strong United States Magistrate Judge
Mr. Lawrence made conclusory allegations that Defendants conspired to fabricate evidence, bring false charges, and maliciously prosecute him in violation of his Fourteenth Amendment due process rights and his Eighth Amendment right to freedom from cruel and unusual punishment. (Complaint, Doc. 2.) On April 22, 2014, this Court issued an Order stating that Mr. Lawrence’s Complaint was so vague that it failed to state a federal claim for relief. Mr. Lawrence was given until May 26, 2014 to file an amended complaint. (Doc. 7.) Mr. Lawrence moved for and was granted an extension until July 25, 2014 to file an amended complaint but he has not filed any amended complaint or further requests for additional time. The original Complaint remains the operative pleading. It should be dismissed for failure to state a claim.
A. “Strike” under 28 U.S.C. § 1915(g)
The Prison Litigation Reform Act prohibits prisoners from bringing forma pauperis civil actions if the prisoner has brought three or more actions in federal court that were dismissed for frivolousness, maliciousness, or for failure to state a claim. 28 U.S.C. § 1915(g). Mr. Lawrence failed to state a claim. This case should be a strike under 28 U.S.C. §1915(g).
B. Certification Regarding Appeal
The Federal Rules of Appellate Procedure provide as follows:
[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, may 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;
Analogously, 28 U.S.C. § 1915(a)(3) provides “[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 good faith standard is an objective one. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A plaintiff satisfies the “good faith” requirement if he or she seeks review of any issue that is “not frivolous.” Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge, 369 U.S. at 445). For purposes of section 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989); Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984).
The record makes plain the instant Complaint is frivolous as it lacks arguable substance in law or fact. As such, no reasonable person could suppose an appeal would have merit. The Court should certify that any appeal of this matter would not be taken in good faith.
C. Address Changes
At all times during the pendency of this action, Mr. Lawrence must immediately advise the Court of any change of address and its effective date. Failure to file a notice of change of address may result in the dismissal of the action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). It is RECOMMENDED:
1. Mr. Lawrence’s Complaint (Doc. 2) should be dismissed.
2. The Clerk of Court should be directed to close this matter and enter judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
3. The Clerk of Court should be directed to have the docket reflect that this dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). Mr. Lawrence failed to state a claim upon which relief may be granted.
4. The Clerk of Court should be directed to have the docket reflect that the Court certifies pursuant to Fed.R.App.P. 24(a)(3)(A) that any appeal of this decision would not be taken in good faith. The record makes plain the instant Complaint is frivolous as it lacks arguable substance in law or fact.
NOTICE OF RIGHT TO OBJECT TO FINDINGS & RECOMMENDATIONS AND CONSEQUENCES OF FAILURE TO OBJECT
Mr. Lawrence may file objections to these Findings and Recommendations within fourteen (14) days after service (mailing) hereof. 28 U.S.C. § 636. Failure to timely file written objections may bar a de novo determination by the district judge and/or waive the right to appeal.
This order is not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed.R.App.P. 4(a), should not be filed until entry of the District Court’s final judgment.