Allen v. Meyer et al

Filing 41

ORDER FINDING that Plaintiff is Entitled to Proceed In Forma Pauperis on 37 Appeal Filed July 15, 2011; ORDER DIRECTING Clerk's Office to Serve Copy of Order on Ninth Circuit signed by Magistrate Judge Gerald B. Cohn on 7/26/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KELVIN ALLEN,

CASE NO. 1:09-cv-00729-GBC (PC)
Plaintiff,

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v.

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ORDER FINDING THAT PLAINTIFF IS
ENTITLED TO PROCEED IN FORMA
PAUPERIS ON APPEAL FILED JULY 15,
2011

MEYER, et al.,
(ECF No. 40)

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

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ORDER

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Kelvin Allen (“Plaintiff”) is a state prisoner and proceeded pro se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On July 1, 2011, the

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Court dismissed Plaintiff’s action, without prejudice, for failure to exhaust administrative

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remedies. (ECF No. 35.) On July 15, 2011, Plaintiff filed a notice of appeal and on July

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21, 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

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taken in bad faith. (ECF Nos. 37 & 40.)

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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 his appeal is not taken in good

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faith or finds that he 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 July 1, 2011 Order

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dismissing the action as a final and appealable order. Here, Defendant filed a Motion to

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Dismiss for failure to exhaust administrative remedies. (ECF No. 25.) Plaintiff filed his

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Opposition to the Motion and Defendant replied. (ECF Nos. 32 & 33.) The Court found

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that Plaintiff had not exhausted all available administrative remedies for this action. Thus,

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the Motion was granted and Plaintiff’s action was dismissed without prejudice.

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Given that Plaintiff’s action was dismissed for failure to exhaust administrative
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remedies and the absence of improper motive, Plaintiff’s appeal is not plainly frivolous. It

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does not appear 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

July 26, 2011
UNITED STATES MAGISTRATE JUDGE

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