Lamon v. Adams et al

Filing 97

ORDER Finding that Plaintiff is Entitled to Proceed in Forma Pauperis on Appeal filed November 17, 2011 93 ; ORDER Directing Clerk's Office to Serve Copy of Order on Ninth Circuit, signed by District Judge Lawrence J. O'Neill on 12/2/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BARRY LOUIS LAMON,

CASE NO. 1:07-cv-01390-LJO-GBC (PC)

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Plaintiff,
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ORDER FINDING THAT PLAINTIFF IS
ENTITLED TO PROCEED IN FORMA
PAUPERIS ON APPEAL FILED NOVEMBER
17, 2011 (Docs. 93, 94)

v.
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DERRAL G. ADAMS, et al.,
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Defendants.

ORDER DIRECTING CLERK’S OFFICE TO
SERVE COPY OF ORDER ON NINTH
CIRCUIT

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Barry Louis Lamon (“Plaintiff’) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. On July 6, 2011, the District Court adopted

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the Magistrate Judge’s Findings and Recommendation to dismiss Plaintiff’s action as barred by res

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judicata. Doc. 85. On November 2, 2011, the District Court denied Plaintiff’s motions for

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reconsideration. Doc. 90. On November 17, 2011, Plaintiff filed a notice of appeal and on

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December 1, 2011, the Ninth Circuit remanded for the limited purpose of determining whether in

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forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in

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bad faith. Doc. 93; Doc. 96.

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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:
(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 reasons for the certification or
finding;
or

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(B) a statute provides otherwise.
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 is proceeding in forma pauperis in this action, Plaintiff is entitled to proceed

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in forma pauperis on appeal unless the Court finds his appeal is not taken in good faith or finds that

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he is not otherwise entitled to proceed in forma pauperis. As set forth below, by this order the Court

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is making a finding that Plaintiff is entitled to proceed in forma pauperis on appeal.

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As Plaintiff’s appeal concerns a dismissal based on a finding of res judicata and the legal

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implication of adding an event to a duplicative claim, Plaintiff’s appeal is not frivolous and is taken

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in good faith.

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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 shall serve

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a copy of this order on the Ninth Circuit.

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IT IS SO ORDERED.

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Dated:
66h44d

December 2, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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