Le v. Chhabria

Background

The Ninth Circuit referred a limited issue back to the district court in Helen Le’s pending appeal: whether Le should continue to have permission to proceed without paying court fees, or whether the appeal was frivolous or brought in bad faith. The appeal was identified as Ninth Circuit Case No. 23-16143.

The district court said that, as far as it could determine, Le had sued two judges in the district for dismissing cases she had filed. A magistrate judge had recommended dismissing Le’s complaint without permission to amend under 28 U.S.C. § 1915(e)(2)(B), relying on judicial immunity. Judicial immunity generally protects judges from lawsuits based on their judicial acts. The district court had adopted that recommendation and ordered dismissal.

Legal standard

Under Federal Rule of Appellate Procedure 24(a) and 28 U.S.C. § 1915(a)(1), a person who cannot afford the expense of an appeal may request permission to appeal without paying fees. The request must include an affidavit showing the person’s inability to pay, claiming an entitlement to relief, and identifying the issues intended for appeal. But 28 U.S.C. § 1915(a)(3) provides that an appeal may not proceed without payment of fees if the trial court certifies that it was not taken in good faith.

The court stated that an appeal is taken in good faith when it seeks review of a non-frivolous issue. An issue is frivolous when it has no arguable basis in fact or law.

Ruling

The court concluded that the appeal had no arguable basis in fact or law. It said the record did not remotely suggest that the judges had acted in the clear absence of all jurisdiction, which the court identified as the extraordinary circumstance needed to avoid judicial immunity for judicial acts.

Judge James Donato revoked Le’s in forma pauperis status, meaning her permission to pursue the appeal without paying fees was revoked. The clerk was requested to forward the order to the Ninth Circuit.