Aggers v. Tyson et al

Filing 60

ORDER CONTINUING In Forma Pauperis Status on Appeal signed by Magistrate Judge Jennifer L. Thurston on 9/13/2011. cc: Ninth Circuit Court of Appeals via CM/ECF. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRYL KEITH AGGERS,

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Case No. 1:07-cv-01701 AWI JLT (PC)

Plaintiff,

ORDER CONTINUING IN FORMA PAUPERIS
STATUS ON APPEAL

vs.
CAPTAIN TYSON, et al.,
Defendants.
/
Plaintiff is a state prisoner proceeding pro se and in forma pauperis. On August 1, 2011, the

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Court dismissed this action for Plaintiff’s failure to exhaust administrative remedies prior to filing

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suit. (Doc. 52.) Plaintiff subsequently filed a notice of appeal. (Doc. 55.) On September 12, 2011,

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the Ninth Circuit referred this matter back to this Court for the limited purpose of deciding whether

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Plaintiff’s in forma pauperis status should continue on appeal.

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“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is

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not taken in good faith.” 28 U.S.C. § 1915(a)(3). “In the absence of some evident improper motive,

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the applicant’s good faith is established by the presentation of any issue that is not plainly frivolous.”

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Ellis v. United States, 356 U.S. 674 (1958). An action is frivolous “where it lacks an arguable basis

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either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In other words, the term

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“frivolous”, as used in § 1915 and when applied to a complaint, “embraces not only the inarguable

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legal conclusion, but also the fanciful factual allegation.” Id.
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In this case, there is nothing to suggest that Plaintiff’s appeal is not being taken in good faith.

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Plaintiff’s contention that he should be excused from his failure to exhaust administrative remedies

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is not plainly frivolous in either law or fact. Accordingly, the Court concludes that Plaintiff’s in

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forma pauperis status should not be revoked on appeal.

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The Clerk of the Court is directed to forward a copy of this order to the Ninth Circuit Court
of Appeals.

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IT IS SO ORDERED.

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Dated: September 13, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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