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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEBBY GENTHNER,

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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)

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Plaintiff Debby Genthner (“Plaintiff”), proceeding pro se and in forma pauperis, filed this

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civil action on March 14, 2016. On August 11, 2016, the court dismissed the action with

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prejudice because it is barred by claim preclusion. (Doc. 5.) Plaintiff appealed.

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On September 8, 2016, plaintiff filed a motion to proceed in forma pauperis on appeal.

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(Doc. 8.) On September 14, 2016, the Ninth Circuit Court of Appeals referred the matter back to

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

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continue for the appeal or whether the appeal is frivolous or taken in bad faith. 28 U.S.C. §

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1915(a)(3). (Doc. 11.)

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The court finds that this appeal is not taken in bad faith and is not frivolous. See Hooker

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v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (discussing revocation of in forma

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pauperis status appropriate if the appeal is frivolous). Accordingly, in forma pauperis status

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should not be revoked and should continue on appeal. Further, as the court has determined that
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plaintiff’s in forma pauperis status should not be revoked, her pending motion to proceed in

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forma pauperis on appeal is moot and is denied as unnecessary. Fed. R. App. P. 24(a)(3) (party

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who was permitted to proceed in forma pauperis in the district court action may proceed on

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appeal in forma pauperis without further authorization unless the district court certifies that the

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appeal is not take in good faith or finds that the party is not otherwise entitled to proceed in forma

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pauperis).

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IT IS SO ORDERED.

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Dated:

September 17, 2016
UNITED STATES DISTRICT JUDGE

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