Wilhelm v. Rotman et al

Filing 19

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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 STEVEN HAIRL WILHELM, 10 Plaintiff, 11 12 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) 13 Defendants. 14 ORDER DIRECTING CLERK’S OFFICE TO SERVE COPY OF ORDER ON NINTH / CIRCUIT 15 16 ORDER 17 Steven Hairl Wilhelm (“Plaintiff”) is a state prisoner and proceeded pro se and in 18 forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On May 10, 19 2011, the Court dismissed Plaintiff’s action, with prejudice, for failure to state any 20 cognizable claims. (ECF No. 13.) On May 26, 2011, Plaintiff filed a notice of appeal and 21 on June 6, 2011, the Ninth Circuit remanded for the limited purpose of determining whether 22 in forma pauperis status should continue for this appeal or whether the appeal is frivolous 23 or taken in bad faith. (ECF Nos. 15 & 18.) 24 Pursuant to the Federal Rules of Appellate Procedure, 25 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: 26 27 28 (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 1 1 reasons for the certification or finding; or 2 (B) a statute provides otherwise. 3 Fed. R. App. P. 24(a)(3). 4 5 6 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. 7 8 Fed. R. App. P. 24(a)(4). 9 Because Plaintiff proceeded in forma pauperis in this action, Plaintiff is entitled to 10 proceed in forma pauperis on appeal unless the Court finds her appeal is not taken in good 11 faith or finds that she is not otherwise entitled to proceed in forma pauperis. As set forth 12 below by this Order, the Court finds that Plaintiff is entitled to proceed in forma pauperis 13 on appeal. 14 “An appeal may not be taken in forma pauperis if the trial court certifies in writing 15 that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). “In the absence of some evident 16 improper motive, the applicant’s good faith is established by the presentation of any issue 17 that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674 (1958). An action is 18 frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 19 U.S. 319, 325 (1989). In other words, the term “frivolous”, as used in § 1915 and when 20 applied to a complaint, “embraces not only the inarguable legal conclusion, but also the 21 fanciful factual allegation.” Id. 22 Pursuant to 28 U.S.C. § 1291, Plaintiff can appeal the Court’s May 10, 2011 Order 23 dismissing the action as a final and appealable order. Here, Plaintiff received guidance 24 from the Court and the opportunity to amend his claims to attempt to state cognizable 25 claims in its Screening Order. (ECF No. 9.) Plaintiff filed his First Amended Complaint, 26 and after screening it, the Court issued an Order dismissing the action due to Plaintiff’s 27 repeated failure to state any cognizable claims. (ECF Nos. 12 & 13.) 28 Given that Plaintiff’s action was dismissed for failure to state a claim and the 2 1 absence of improper motive, Plaintiff’s appeal is not plainly frivolous. It does not appear 2 to lack an arguable basis either in law or in fact. 3 Based on the foregoing, it is HEREBY ORDERED that: 4 Plaintiff’s appeal is taken in good faith. 28 U.S.C. § 1915(a). The Clerk’s Office 5 shall serve a copy of this order on the Ninth Circuit. 6 IT IS SO ORDERED. 7 8 Dated: 1j0bbc June 14, 2011 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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