Pierce v. Stone

Filing 22

ORDER Regarding In Forma Pauperis Status on Appeal signed by Magistrate Judge Barbara A. McAuliffe on 12/27/2018. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DARNELLE PIERCE,

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Plaintiff,

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v.

Case No. 1:17-cv-01614-DAD-BAM (PC)
Appeal No. 18-17337
ORDER REGARDING IN FORMA PAUPERIS
STATUS ON APPEAL

STONE, et al.,

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Defendants.

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Plaintiff Darnelle Pierce (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. On October 3, 2018, the

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Court dismissed this action, with prejudice, due to Plaintiff’s failure to state a claim upon which

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relief may be granted. (ECF No. 16.) Judgment was entered accordingly the same date. (ECF

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No. 17.) On December 3, 2018, Plaintiff filed a notice of appeal. (ECF No. 18.)

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On December 11, 2018, the Ninth Circuit Court of Appeals referred the matter back to this

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

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the appeal. 28 U.S.C. § 1915(a)(3). The Court finds that this appeal is not taken in bad faith and

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is not frivolous.1 Accordingly, in forma pauperis status should not be revoked and should

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continue on appeal.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

December 27, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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Although the appeal was filed on December 3, 2018, well beyond the thirty days provided by Federal Rule of
Appellate Procedure 4(a)(1)(A), the Court notes that Plaintiff’s proof of service is dated October 22, 2018. (ECF No.
18, p. 4.) Pursuant to the prison mailbox rule, and without the benefit of other information, the Court will treat
Plaintiff’s notice of appeal as filed as of October 22, 2018, the date it was delivered to the prison authorities for
mailing to the Court. See Houston v. Lack, 487 U.S. 266, 270 (1988); Douglas v. Noelle, 567 F.3d 1103, 1108–09
(9th Cir. 2009) (mailbox rule articulated in Houston applies to civil rights actions). Therefore, the appeal appears to
be timely filed.

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