Ellawendy v. Ferrera
- Lucy Koh
- 5:20-cv-07757
- U.S. District Court · Northern District of California
- 6
In Ellawendy v. Ferrera, Judge Koh discontinued Ellawendy’s fee waiver for his appeal after finding the appeal legally frivolous.
AbdelFatah Ellawendy, whose permission to proceed without paying fees on appeal was discontinued.
What happened
In Ellawendy v. Ferrera, the court considered whether AbdelFatah Ellawendy could continue proceeding without paying court fees while appealing the dismissal of his case. The Ninth Circuit asked the district court to decide that issue.
The district court had dismissed Ellawendy’s case without prejudice after finding that four versions of his complaint still failed to state a claim. The court said his claims against prosecutors and public defenders were legally defective and that his other claims lacked a sufficient legal basis.
Judge Lucy H. Koh ruled that the appeal was frivolous and discontinued Ellawendy’s ability to proceed without paying fees on appeal. The clerk was directed to notify the Ninth Circuit.
The detailed version
- Ellawendy v. Ferrera · No. 5:20-cv-07757
- Lucy Koh
- Oct. 1, 2021
Background
The Ninth Circuit referred the matter to the district court to decide whether AbdelFatah Ellawendy could continue proceeding on appeal without paying filing fees. The district court had previously granted him permission to proceed without paying fees and had screened his complaints under 28 U.S.C. § 1915.
Ellawendy filed four versions of his complaint. United States Magistrate Judge Nathanael Cousins gave him multiple opportunities to amend, directed him to address deficiencies, and referred him to the Federal Pro Se Program for help with his complaint. After the fourth version, Judge Cousins recommended dismissal because Ellawendy still had not stated a claim and had added claims and parties without permission. The district court adopted that recommendation and dismissed the case without prejudice. Ellawendy then appealed.
Reasons for the ruling
The court explained that a person may proceed without paying fees on appeal unless the district court certifies that the appeal is not taken in good faith. The court stated that an appeal is not taken in good faith when it is frivolous, meaning it lacks a legally supportable basis.
The court identified four reasons why it considered Ellawendy’s appeal frivolous:
1. The court said John Ferrera and the Monterey County District Attorney were protected from Ellawendy’s claims under 42 U.S.C. § 1983 by absolute immunity for prosecutors performing their traditional advocacy functions.
2. The court said Ellawendy’s former public defender, Michael Belter, and the Monterey County Public Defender could not be sued under § 1983 for actions taken while performing traditional defense-lawyer functions because they were not acting under color of state law, meaning they were not using authority provided by state law in the relevant conduct.
3. The court found that Ellawendy had not provided allegations supporting application of 25 C.F.R. § 11.448, a Bureau of Indian Affairs regulation that applies in Indian Country and concerns certain illegal searches, seizures, or arrests.
4. The court found that Ellawendy had not identified a legal basis for his claim that the District Attorney improperly failed to prosecute his alleged ex-girlfriend or ignored her alleged wrongdoing. The court also noted uncertainty about whether a person can sue a district attorney for failing to prosecute someone.
Disposition
Judge Lucy H. Koh discontinued Ellawendy’s in forma pauperis status for purposes of the appeal. In practical terms, he could no longer pursue that appeal under the fee-waiver status previously granted by the district court. The court directed the clerk to notify the Ninth Circuit.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.