Cruz-McCoy et al v. San Diego County Child Welfare Services et al
| Leila Marie Cruz-McCoy and Clyde McCoy |
| San Diego County Child Welfare Services, Lynette Miller and Nick Macchione |
| 2:2022cv04194 |
| December 29, 2022 |
| US District Court for the Western District of Missouri |
| Nanette K Laughrey |
| Constitutional - State Statute |
| 28 U.S.C. § 2201 Constitutionality of State Statute(s) |
| None |
Docket Report
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Filing 18
Order by Judge Nanette K. Laughrey. Plaintiffs' #13 Motion for Leave to Appeal In Forma Pauperis is DENIED. Plaintiffs seek to appeal this Court's original denial of in forma pauperis status, Doc. 3 (Order). To appeal in forma pauperis, that is, without prepaying the necessary filing fees, Plaintiffs must submit an affidavit (a) with information demonstrating their inability to pay; (b) claiming an entitlement to redress; and (c) stating the issues that they intend to present on appeal. Fed. R. App. P. 24(a)(1). As a preliminary matter, Plaintiffs have failed to identify the issues they intend to raise on appeal that entitle them to redress. Wells v. Cumulus Media Inc. , No. 4: 19-CV-00530-FJG, 2019 WL 13258143, at *1 (W.D. Mo. Sept. 12, 2019) (denying leave to appeal in forma pauperis when appellant failed to identify any purported error in the district court's order). At most, Plaintiffs argue that they are financially unable to pay the necessary filing fees. However, the Court did not deny IFP on the basis of a finding that Plaintiffs were able to pay the necessary fees. Rather, the Court denied leave to proceed in forma pauperis because it concluded that Plaintiffs' claims were frivolous, and Plaintiffs have not challenged that conclusion. In any event, "an appeal cannot 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). Courts judge "good faith" objectively. Coppedge v. United States , 369 U.S. 438, 445 (1962). Good faith is not present if the issues presented for review are frivolous or if there is no arguable basis in law or fact supporting the appellant's claims. Wells , 2019 WL 13258143, at *1. As the Court previously explained, there is no arguable basis to remove a case pending in California state court to the Western District of Missouri. Doc. 3. Accordingly, the Court cannot but conclude that Plaintiffs' attempt to appeal this Court's order denying IFP is not taken in good faith as that term is used in the in-forma-pauperis context. The Court therefore DENIES Plaintiffs leave to appeal in forma pauperis. Signed on 2/23/2023 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Gassen, Austin) Modified on 2/24/2023 to reflect NEF mailed to Clyde McCoy, General Delivery, Columbia, MO 65201 (Warren, Melissa).
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| Filing 17 AMENDED USCA Case Number from Eighth Circuit is 23-1237 for #10 Notice of Appeal, filed by Clyde McCoy. (Warren, Melissa) |
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Filing 16
ORDER of US COURT OF APPEALS as to #10 Notice of Appeal, filed by Clyde McCoy. If the original file of the United States District Court is available for review in electronic format, the court will rely on the electronic version of the record in its review. The appendices required by Eighth Circuit Rule 30A shall not be required. In accordance with Eighth Circuit Local Rule 30A(a)(2), the Clerk of the United States District Court is requested to forward to this Court forthwith any portions of the original record which are not available in an electronic format through PACER, including any documents maintained in paper format or filed under seal, exhibits, administrative records and state court files. These documents should be submitted within 10 days. (Warren, Melissa)
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| Filing 15 USCA Case Number from Eighth Circuit is 23-2235 for #10 Notice of Appeal, filed by Clyde McCoy. (Warren, Melissa) |
| Filing 14 NOTICE of filing for change of address filed by Clyde McCoy,General DeliveryColumbia, MO 65201. Document received via EDSS on 1/26/2023. NEF mailed to Clyde McCoy, General Delivery,Columbia, MO 65201. (Warren, Melissa) |
| Filing 13 PRO SE MOTION for leave to Appeal in forma pauperis filed by Leila Marie Cruz-McCoy and Clyde McCoy. Suggestions in opposition/response due by 2/9/2023 unless otherwise directed by the court. Document received via EDSS on 1/26/2023. NEF mailed to Clyde McCoy, General Delivery, Columbia, MO 65201 (Warren, Melissa). |
| Filing 12 PRO SE CERTIFICATE OF SERVICE filed by Clyde McCoy re #10 Notice of Appeal, on behalf of Plaintiff Clyde McCoy. Related document: #10 Notice of Appeal, filed by Clyde McCoy. (Attachments: #1 Notice of Appeal) Document received via EDSS on 1/26/2023. NEF mailed to Clyde McCoy, General Delivery, Columbia, MO 65201 (Warren, Melissa). |
| Filing 11 TRANSMISSION of Notice of Appeal Supplement to US Court of Appeals, 8th Circuit via electronic mail. Related document #10 Notice of Appeal. NEF mailed to Clyde McCoy, General Delivery, Columbia, MO 65201 (Warren, Melissa). |
| Filing 10 PRO SE NOTICE AND MOTION TO APPEAL DISMISSAL OF CASE AND TO APPEAL DENIAL OF IN FORMA PUPERIS as to 3 Order on Motion for Leave to Proceed in forma pauperis by Clyde McCoy. Document received via EDSS on 1/25/2023. (Warren, Melissa) Modified on 1/26/2023 to reflect NEF mailed to Clyde McCoy, General Delivery, Columbia, MO 65201 (Warren, Melissa). |
| Filing 9 CLERK'S JUDGMENT. (Lock, Tania) Modified on 1/25/2023 to reflect that a copy was mailed to Clyde McCoy at 1201 Elleta Blvd, Columbia, MO 65202 and to reflect that the NEF was regenerated to notify the 8th Circuit Court of Appeals of this filing (Lock, Tania). Modified on 1/26/2023 to reflect copy mailed to Clyde McCoy, General Delivery, Columbia, MO 65201. (Berner, Crystal). |
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Filing 8
ORDER of US COURT OF APPEALS as to #4 Notice of Appeal filed by Leila Marie Cruz-McCoy. If the original file of the United States District Court is available for review in electronic format, the court will rely on the electronic version of the record in its review. The appendices required by Eighth Circuit Rule 30A shall not be required. In accordance with Eighth Circuit Local Rule 30A(a)(2), the Clerk of the United States District Court is requested to forward to this Court forthwith any portions of the original record which are not available in an electronic format through PACER, including any documents maintained in paper format or filed under seal, exhibits, CDs, videos, administrative records and state court files. These documents should be submitted within 10 days. (Berner, Crystal)
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Filing 7
ORDER of US COURT OF APPEALS as to #4 Notice of Appeal filed by Leila Marie Cruz-McCoy. The $505 appellate filing and docketing fee has not been paid and is due. Appellant is directed to either pay the fee in the district court or file a motion for leave to proceed in forma pauperis in this court within 28 days of the date of this order. A motion for leave to proceed in forma pauperis must include a completed copy of the attached "Application to Proceed Without Prepaying Fees or Costs" or an affidavit that shows in the same detail the Appellants inability to pay or to give security for fees and costs. If appellant does not pay the fee or move for IFP status by February 22, 2023, this appeal may be dismissed for failure to prosecute without further notice. (Attachments: #1 IFP Application)(Berner, Crystal)
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| Filing 6 USCA Case Number from Eighth Circuit Court of Appeals is 23-1136 for #4 Notice of Appeal filed by Leila Marie Cruz-McCoy. (Berner, Crystal) |
| Filing 5 TRANSMISSION of Notice of Appeal Supplement to US Court of Appeals, 8th Circuit via electronic mail. Related document #4 Notice of Appeal. (Warren, Melissa) |
| Filing 4 PRO SE NOTICE OF APPEAL as to 3 Order on Motion for Leave to Proceed in forma pauperis by Leila Marie Cruz-McCoy. Document received via EDSS 1/24/2023. (Warren, Melissa) |
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Filing 3
Order by Judge Nanette K. Laughrey. Plaintiffs' #1 Pro Se Motion To Proceed In Forma Pauperis is DENIED. Their claims are frivolous. A claim is frivolous if "it lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Plaintiffs seek to remove a state court lawsuit filed in San Diego Superior Court. See Doc. 1-1. 28 U.S.C. 1441 permits removal in certain circumstances, but only "to the district court of the United States for the district and division embracing the place where such action is pending." Even assuming Plaintiffs' cause of action was otherwise removable, there is no arguable basis to remove it to this Court. Accordingly, Plaintiffs' Motion is DENIED and this case is hereby DISMISSED. Signed on 1/23/2023 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Gassen, Austin) Modified on 1/23/2023 to reflect NEF mailed to Clyde McCoy, 1201 Elleta Blvd, Columbia, MO 65202 (Warren, Melissa).
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| Filing 2 FINANCIAL AFFIDAVIT by Leila Marie Cruz-McCoy, Clyde McCoy. (Attachments: #1 Exhibit)(Woods, Gloria) |
| Filing 1 Pro Se MOTION for leave to proceed in forma pauperis filed by All Plaintiffs. Suggestions in opposition/response due by 1/12/2023 unless otherwise directed by the court. (Attachments: #1 Complaint, #2 Civil Cover Sheet, #3 Envelope)(Woods, Gloria) |
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