Wilhelm v. Rotman et al
Filing
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ORDER FINDING that Plaintiff is Entitled to Proceed In Forma Pauperis on 15 Appeal Filed May 26, 2011; ORDER DIRECTING Clerk's Office to Serve Copy of Order on Ninth Circuit signed by Magistrate Judge Gerald B. Cohn on 6/14/2011. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STEVEN HAIRL WILHELM,
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Plaintiff,
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CASE NO. 1:10-cv-00001-GBC (PC)
ORDER FINDING THAT PLAINTIFF IS
ENTITLED TO PROCEED IN FORMA
PAUPERIS ON APPEAL FILED MAY 26,
2011
v.
CA L I FO RNIA DEPARTMENT
CORRECTIONS, et al.,
OF
(ECF No. 15)
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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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Steven Hairl Wilhelm (“Plaintiff”) is a state prisoner and proceeded pro se and in
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forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On May 10,
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2011, the Court dismissed Plaintiff’s action, with prejudice, for failure to state any
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cognizable claims. (ECF No. 13.) On May 26, 2011, Plaintiff filed a notice of appeal and
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on June 6, 2011, the Ninth Circuit remanded for the limited purpose of determining whether
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in forma pauperis status should continue for this appeal or whether the appeal is frivolous
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or taken in bad faith. (ECF Nos. 15 & 18.)
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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 May 10, 2011 Order
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dismissing the action as a final and appealable order. Here, Plaintiff received guidance
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from the Court and the opportunity to amend his claims to attempt to state cognizable
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claims in its Screening Order. (ECF No. 9.) Plaintiff filed his First Amended Complaint,
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and after screening it, the Court issued an Order dismissing the action due to Plaintiff’s
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repeated failure to state any cognizable claims. (ECF Nos. 12 & 13.)
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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 14, 2011
UNITED STATES MAGISTRATE JUDGE
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