Jones v. Choudhury et al

Filing 15

ORDER Finding that Plaintiff is Entitled to Proceed In Forma Pauperis on Appeal Filed August 12, 2011; ORDER Directing Clerk's Office to Serve Copy of Order on Ninth Circui, signed by Magistrate Judge Gerald B. Cohn on 8/31/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LARRY D. JONES,
Plaintiff,

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CASE NO. 1:10-cv-02063-GBC (PC)

v.

ORDER FINDING THAT PLAINTIFF IS
ENTITLED TO PROCEED IN FORMA
PAUPERIS ON APPEAL FILED AUGUST
12, 2011

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JAYANTA CHOUDHURY, et al.,

(ECF No. 14)

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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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Larry D. Jones (“Plaintiff”) proceeded pro se and in forma pauperis in this civil rights

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action filed pursuant to 42 U.S.C. § 1983. On July 26, 2011, the Court dismissed Plaintiff’s

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action, with prejudice, for failure to state any cognizable claims. (ECF No. 9.) On August

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12, 2011, Plaintiff filed a notice of appeal and on August 23, 2011, the Ninth Circuit

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remanded for the limited purpose of determining whether in forma pauperis status should

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continue for this appeal or whether the appeal is frivolous or taken in bad faith. (ECF Nos.

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11 & 14.)

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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 26, 2011 Order

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dismissing the action as a final and appealable order. Here, the Court issued an order

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dismissing the action due to Plaintiff’s repeated failure to state any cognizable claims.

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(ECF No. 9.)

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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 apparent improper motive, Plaintiff’s appeal is not plainly frivolous. It does not

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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

August 31, 2011
UNITED STATES MAGISTRATE JUDGE

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