Rogers v. Clark County Corrections

THE HONORABLE JOHN C. COUGHENOUR UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE DARYL ROGERS, CASE NO. C22-5064-JCC Plaintiff, ORDER 11 v. CLARK COUNTY CORRECTIONS, et. al., 13 Defendants.

15 This matter comes before the Court on Petitioner Daryl Rogers’ motion for leave to appeal in forma pauperis (“IFP”), referred to this Court. (Dkt. No. 46.) For the reasons described below, the Court hereby DENIES Petitioner’s motion.

18 Under the Federal Rules of Appellate Procedure, a party to a district court action who desires to appeal in forma pauperis must file a motion in the district court with an affidavit that: (1) shows in prescribed detail the party’s inability to pay or to give security for fees and costs; (2) claims an entitlement to redress; and (3) states the issues that the party intends to present on appeal. Fed. R. App. P. 24(a). “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). “[A]n appeal is not taken in good faith . . . if there is some evident improper motive or if no issue is presented which is not plainly frivolous.” Tweedy v. United States, 276 F.2d 649, 651 (9th Cir. 1960); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (holding that an appeal is frivolous where it lacks an arguable basis in law).

2 Petitioner filed a 42 U.S.C. § 1983 civil action with this Court in of March 2022. (Dkt.

3 No. 6.) The Honorable S. Kate Vaughan, United States Magistrate Judge, issued a Report and Recommendation (“R&R”) (Dkt. No. 39) recommending that the Court deny the petition. (Id.) Petitioner objected. (Dkt. No. 40.) This Court overruled Petitioner’s objections, adopted the R&R, and dismissed his Second Amended Complaint with prejudice. (See Dkt. No. 42.)

7 Petitioner then filed a notice of appeal to the Ninth Circuit (Dkt. No. 44.)

8 For the same reasons outlined in Judge Vaughan’s R&R, and this Court’s order overruling Petitioner’s objections, Petitioner’s appeal is not taken in good faith. First, Petitioner’s ADA claim fails to adequately state a claim for which relief can be granted because he merely alleges inadequate treatment which, without more, is insufficient under the ADA. See Simmons v. Navajo Cnty., 609 F.3d 1011, 1022 (9th Cir. 2010) (“The ADA prohibits discrimination because of disability, not inadequate treatment for disability.”) Second, Petitioner wishes to hold the County liable under a theory of respondeat superior. However, as Judge Vaughan’s R&R noted, a local government entity cannot be held liable under § 1983 on respondeat superior grounds. (See Dkt. 21 at 10–11) (citing Monell v. Department of Social Servs. of City of New York, 436 U.S. 658, 691–94 (1978)). Third, Petitioner’s allegations against the remaining Defendants, as set forth in his civil deprivation and failure to supervise claims, were too vague and conclusory to state a claim. (See Dkt. No. 21 at 14-15.) Petitioner did not cure this deficiency in his Second Amended Complaint. (See Dkt. No. 33.)

21 At bottom, Petitioner does not identify errors by the Court, nor does he cure the deficiencies of his complaint brought to his attention by the Court; rather, Petitioner restates his original grounds for relief. (Compare Dkt. No. 6, with Dkt. No. 33.) Thus, Petitioner’s notice of appeal is frivolous because it lacks an arguable basis in law. See Neitzke, 490 U.S. at 325.

25 Therefore, the Court CERTIFIES that Petitioner’s appeal is not taken in good faith and DENIES Petitioner’s motion to proceed in forma pauperis on appeal. The Court DIRECTS the Clerk to send this order to the Ninth Circuit Court of Appeals. The Court further DIRECTS the Clerk to send a copy of this order to Petitioner.

5 DATED this 17th day of August 2023.

A 12 John C. Coughenour UNITED STATES DISTRICT JUDGE