ORDER – No. 16-cv-07414-LB

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

San Francisco Division

TATYANA EVGENIEVNA DREVALEVA,

Plaintiff,

v.

ALAMEDA HEALTH SYSTEM, et al.,

Defendants.

Case No. 16-cv-07414-LB 

ORDER REVOKING APPELLATE

IN FORMA PAUPERIS

STATUS

INTRODUCTION

On July 7, 2017, the court dismissed with prejudice the plaintiffs‘ last remaining claims in this 

case.1It entered a Rule 58 judgment that same day and closed the case.2The plaintiff has appealed 

from that judgment and from the court‘s underlying dispositive orders. The Court of Appeals has 

directed this court to decide whether the plaintiff may continue to proceed in forma pauperis for 

her appeal. This court has reviewed the plaintiff‘s claims, her amendments and arguments that 

sought to frame a minimally viable claim that this court could entertain, and its own orders.3The 

court concludes that the plaintiff‘s appeal is without merit. The court does not doubt the plaintiff‘s 

 

1 ECF No. 76. Record citations refer to material in the Electronic Case File (―ECF‖); pinpoint citations 

are to the ECF-generated page numbers at the top of documents.

2 ECF No. 77.

3

See ECF Nos. 36, 58, 76 (dismissal orders).

Case 3:16-cv-07414-LB Document 82 Filed 07/24/17 Page 1 of 5
ORDER – No. 16-cv-07414-LB 2

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subjective good faith. But her claims remain legally feckless. The court therefore revokes her in 

forma pauperis status for purposes of her appeal.

GOVERNING LAW

―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). This section is generally construed to mean that 

an appeal must not be frivolous. See, e.g., Coppedge v. United States, 369 U.S. 438, 445 (1962) 

(holding that the term ― ̳good faith‘ . . . must be judged by an objective standard‖ and is 

demonstrated when appellant seeks review ―of any issue not frivolous‖); Ellis v. United States, 356 

U.S. 674, 674 (1958) (noting that ―[i]n the absence of some evident improper motive, the 

applicant‘s good faith is established by the presentation of any issue that is not plainly frivolous‖); 

Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (―If at least one issue or claim is 

found to be non-frivolous, leave to proceed in forma pauperis on appeal must be granted for the 

case as a whole‖). An issue is frivolous if it is ―without merit,‖ if it has ―no arguable basis in fact 

or law.‖ See O’Loughlin v. Doe, 920 F.2d 614, 616–17 (9th Cir. 1990) (quoting Tripati v. First 

Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987) (―without merit‖); Franklin v. Murphy, 

745 F.2d 1221, 1228 (9th Cir. 1984) (―no arguable basis‖)).

DISCUSSION

The court has carefully reviewed its earlier analyses to try and find something in the plaintiff‘s 

case that shows a glimmer of legal viability. It could find nothing. The court remains convinced 

that the plaintiff‘s claims, however sincere, fundamentally fail to state a claim. For the reasons 

given in the court‘s previous orders, moreover, no amendment or argument could save those 

claims. The court thus concludes that the plaintiff‘s appeal is legally ―frivolous‖ and that her in 

forma pauperis status should be revoked for purposes of appeal.

The plaintiff began this case by suing her former employer (a public hospital) and the state 

labor agency that reviewed her retaliation grievance against the hospital — and found that 

Case 3:16-cv-07414-LB Document 82 Filed 07/24/17 Page 2 of 5
ORDER – No. 16-cv-07414-LB 3

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grievance wanting.4The court first dismissed the plaintiff‘s claims against both defendants in 

March 2017.5The plaintiff had not pleaded diversity jurisdiction, and the facts would not have 

supported it. Nor did the plaintiff state a federal claim. She raised only state claims and the court 

found these likely wanting. Additionally, the court held that the state labor agency was immune 

from suit under the Eleventh Amendment to the U.S. Constitution. The court dismissed the 

complaint and gave the plaintiff 30 days to file an amended complaint.

When she filed that new complaint, the plaintiff continued to sue her former employer (the 

hospital); she did not name the state agency; but she added a handful of the agency‘s employees as 

new, individual defendants whom she sued in their ―personal capacit[ies].‖ The court analyzed the 

only possible federal claims against the hospital and concluded that the plaintiff stated no viable 

theory.6The plaintiff‘s new complaint ―possibly‖ raised a Title VII discrimination claim, for 

example, but the plaintiff agreed that this discrimination was not the engine of her grievance. 

Furthermore, having been pointed to the governing legal rules, she conceded that she could not

state a prima facie Title VII claim. The plaintiff summarily invoked other federal laws — the Fair 

Labor Standards Act (FLSA); the Labor-Management Relations Act (LMRA); the National Labor 

Relations Act (NLRA); and the Occupational Safety and Health Act (OSHA) — but the court 

found all these claims fundamentally deficient.7 Her own allegations, for example, showed that she 

did not come within the FLSA‘s overtime rules. Moreover, as a public entity, the hospital was not 

subject to the LMRA and NLRA. Nothing in the complaint suggested any sort of dispute lying 

within the scope of OSHA. And the other federal statutes that the plaintiff fleetingly cited bore 

absolutely no relation to the factual situation that she alleged. Lacking a viable federal claim 

before it, and thus lacking subject-matter jurisdiction, the court again dismissed the plaintiff‘s suit 

against the hospital.

 

4

See generally Compl. – ECF No. 1; Am. Compl. – ECF No. 40.

5 ECF No. 36.

6 ECF No. 58 at 2–8.

7

Id.

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ORDER – No. 16-cv-07414-LB 4

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Before amending her complaint, the plaintiff had moved from California to New Mexico. This 

gave her diversity jurisdiction against the newly added, individual defendants.8 At the time of this 

second dismissal order, though, those defendants had not been served (though the court had 

authorized that service under 28 U.S.C. § 1915(e)(2)(B)).

The individual defendants were later served, or waived service, and moved to dismiss the 

claims against them. In its third and final dismissal order, the court held that the plaintiff had no 

viable claim against these defendants. Her core factual grievance against these people was to 

disagree with the regulatory conclusion that they had reached. (That her former employer had not 

wrongfully retaliated against her.) These defendants had not infracted a recognized liberty or 

property interest that would yield a viable due-process claim. They were absolutely immune under 

a California statute (Cal. Gov‘t Code § 820.2) for their discretionary acts in handling the plaintiff‘s 

administrative grievance. And another state statute (Cal. Civ. Code § 47) cloaked in absolute 

privilege statements that they made in the course of investigating and delivering their ruling on 

that grievance. As with most of her legal theories, therefore, these were fundamental deficiencies 

that no amendment could cure. The court consequently dismissed her remaining claims with 

prejudice.9 On that same day, the court entered a Rule 58 judgment in the defendants‘ favor and 

closed this case.10

* * *

The court believes that that the plaintiff‘s claims are fundamentally flawed. In a way, again, 

that cannot be saved by amendment. For present purposes, this implies that the plaintiff‘s claims 

have ―no arguable basis in fact or law.‖ See O’Loughlin, 920 F.2d at 617. This court thus 

concludes that the plaintiff‘s in forma pauperis status should be revoked for purposes of pursuing 

an appeal.

 

8

Id. at 9–10.

9 ECF No. 76 at 2–7.

10 ECF No. 77.

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ORDER – No. 16-cv-07414-LB 5

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CONCLUSION

The court thus revokes Ms. Drevaleva‘s in forma pauperis status for purposes of appeal. The 

Clerk shall notify Ms. Drevaleva and the Court of Appeals of this order. See Fed. R. App. P. 

24(a)(4). Ms. Drevaleva may file a motion for leave to proceed in forma pauperis on appeal in the 

Court of Appeals within 30 days after service of this order. See Fed. R. App. P. 24(a)(5). Any such 

motion ―must include a copy of the affidavit filed in the district court and the district court‘s 

statement of reasons for its action.‖ Id.

IT IS SO ORDERED.

Dated: July 24, 2017

______________________________________

LAUREL BEELER

United States Magistrate Judge

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