Genthner v. Hedrick et al

Filing 12

ORDER Regarding Referred Question and Denying 8 Motion to Proceed IFP as Moot signed by District Judge Dale A. Drozd on 09/17/2016. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEBBY GENTHNER, 12 13 14 15 No. 1:16-cv-00350-DAD-BAM Plaintiff, v. ROBERT HEDRICK, et al., Defendants. ORDER REGARDING REFERRED QUESTION AND DENYING MOTION AS MOOT (Doc. Nos. 8, 11) 16 17 Plaintiff Debby Genthner (“Plaintiff”), proceeding pro se and in forma pauperis, filed this 18 civil action on March 14, 2016. On August 11, 2016, the court dismissed the action with 19 prejudice because it is barred by claim preclusion. (Doc. 5.) Plaintiff appealed. 20 On September 8, 2016, plaintiff filed a motion to proceed in forma pauperis on appeal. 21 (Doc. 8.) On September 14, 2016, the Ninth Circuit Court of Appeals referred the matter back to 22 this court for the limited purpose of determining whether in forma pauperis status should 23 continue for the appeal or whether the appeal is frivolous or taken in bad faith. 28 U.S.C. § 24 1915(a)(3). (Doc. 11.) 25 The court finds that this appeal is not taken in bad faith and is not frivolous. See Hooker 26 v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (discussing revocation of in forma 27 pauperis status appropriate if the appeal is frivolous). Accordingly, in forma pauperis status 28 should not be revoked and should continue on appeal. Further, as the court has determined that 1 1 plaintiff’s in forma pauperis status should not be revoked, her pending motion to proceed in 2 forma pauperis on appeal is moot and is denied as unnecessary. Fed. R. App. P. 24(a)(3) (party 3 who was permitted to proceed in forma pauperis in the district court action may proceed on 4 appeal in forma pauperis without further authorization unless the district court certifies that the 5 appeal is not take in good faith or finds that the party is not otherwise entitled to proceed in forma 6 pauperis). 7 IT IS SO ORDERED. 8 Dated: September 17, 2016 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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