Jones v. California Department of Corrections, et al.
Filing
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ORDER Finding That Plaintiff IS Entitled to Proceed In Forma Pauperis on Appeal Filed May 16, 2011; ORDER Directing Clerk's Office to Serve Copy of Order on Ninth Circuit, signed by Magistrate Judge Gerald B. Cohn on 6/6/2011. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CHRISTINE JONES,
Plaintiff,
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CASE NO. 1:08-cv-01383-LJO-GBC (PC)
ORDER FINDING THAT PLAINTIFF IS
ENTITLED TO PROCEED IN FORMA
PAUPERIS ON APPEAL FILED MAY 16,
2011
v.
CA L I FO RNIA DEPARTMENT
CORRECTIONS, et al.,
OF
(ECF No. 22)
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Defendants.
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ORDER DIRECTING CLERK’S OFFICE TO
SERVE COPY OF ORDER ON NINTH
/ CIRCUIT
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ORDER
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Christine Jones (“Plaintiff”) proceeded pro se and in forma pauperis in this civil rights
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action filed pursuant to 42 U.S.C. § 1983. On April 22, 2011, the District Court adopted the
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Magistrate Judge’s Findings and Recommendation dismissing Plaintiff’s action, with
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prejudice, for failure to state any cognizable claims. (ECF Nos. 15 & 17.) On May 16,
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2011, Plaintiff filed a notice of appeal and on May 25, 2011, the Ninth Circuit remanded for
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the limited purpose of determining whether in forma pauperis status should continue for
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this appeal or whether the appeal is frivolous or taken in bad faith. (ECF Nos. 19 & 22.)
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Pursuant to the Federal Rules of Appellate Procedure,
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A party who was permitted to proceed in forma pauperis in the district-court
action . . . may proceed on appeal in forma pauperis without further
authorization, unless:
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(A) the district court - before or after the notice of appeal is filed - certifies
that the appeal is not taken in good faith or finds that the party is not
otherwise entitled to proceed in forma pauperis and states in writing its
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reasons for the certification or finding;
or
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(B) a statute provides otherwise.
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Fed. R. App. P. 24(a)(3).
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The district clerk must immediately notify the parties and the court of appeals
when the district court does any of the following:
(A) denies a motion to proceed on appeal in forma pauperis;
(B) certifies that the appeal is not taken in good faith; or
(C) finds that the party is not otherwise entitled to proceed in forma pauperis.
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Fed. R. App. P. 24(a)(4).
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Because Plaintiff proceeded in forma pauperis in this action, Plaintiff is entitled to
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proceed in forma pauperis on appeal unless the Court finds her appeal is not taken in good
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faith or finds that she is not otherwise entitled to proceed in forma pauperis. As set forth
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below by this Order, the Court finds that Plaintiff is entitled to proceed in forma pauperis
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on appeal.
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“An appeal may not be taken in forma pauperis if the trial court certifies in writing
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that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). “In the absence of some evident
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improper motive, the applicant’s good faith is established by the presentation of any issue
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that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674 (1958). An action is
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frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490
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U.S. 319, 325 (1989). In other words, the term “frivolous”, as used in § 1915 and when
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applied to a complaint, “embraces not only the inarguable legal conclusion, but also the
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fanciful factual allegation.” Id.
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Pursuant to 28 U.S.C. § 1291, Plaintiff can appeal the Court’s April 22, 2011 Order
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dismissing the action as a final and appealable order. Here, the Court issued Findings and
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Recommendation, recommending dismissal of the action due to Plaintiff’s repeated failure
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to state a cognizable claim. (ECF No. 15.) The Finding and Recommendation was
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adopted, in full, over Plaintiff’s Objections. (ECF Nos. 16 & 17.)
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Given that Plaintiff’s action was dismissed for failure to state a claim and the
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absence of improper motive, Plaintiff’s appeal is not plainly frivolous. It does not appear
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to lack an arguable basis either in law or in fact.
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Based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff’s appeal is taken in good faith. 28 U.S.C. § 1915(a). The Clerk’s Office
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shall serve a copy of this order on the Ninth Circuit.
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IT IS SO ORDERED.
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Dated:
1j0bbc
June 6, 2011
UNITED STATES MAGISTRATE JUDGE
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