Penton v. Hubard et al

Filing 87

ORDER signed by Judge Garland E. Burrell, Jr on 11/9/15: The Court finds that plaintiff should be entitled to continue proceeding in forma pauperis pursuant to the appeal of this action re 86 USCA Order. (cc:USCA) (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY PENTON,

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No. 2:11-cv-0518 GEB KJN P

Plaintiff,

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v.

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S. NUNEZ, et al.,

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ORDER

Defendants.

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The Ninth Circuit Court of Appeals has referred to the undersigned the limited question
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whether plaintiff’s in forma pauperis status should continue pursuant to the appeal of this court’s
dismissal of this action on July 28, 2015. See 28 U.S.C. § 1915(a)(3) (“An appeal may not be
taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.”).1

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The Federal Rules of Appellate Procedure provide as follows:
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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 . . . .

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The Ninth Circuit referenced two case numbers: 14-15093 and 14-15088. This response
addresses both referral notices.
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Fed. R. App. P. 24(a)(3).
This court finds no reason to revoke petitioner’s in forma pauperis status. This court

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dismissed this action without prejudice based on plaintiff’s failure to serve defendant S. Nunez

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pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The court did not find that

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plaintiff’s allegations were frivolous.

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Plaintiff’s appeal appears to be neither frivolous, see Coppedge v. United States, 369 U.S.

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438, 445 (1962) (an appeal of a nonfrivolous issue is assumed to be made in good faith), nor

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unreasonable, see Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000) (“to determine that an

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appeal is in good faith, a court need only find that a reasonable person could suppose that the

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appeal has some merit”). Therefore, there does not presently appear to be a basis for finding that

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plaintiff’s appeal is taken in bad faith. See Fed. R. App. P. 24(a)(3)(A); 28 U.S.C. § 1915(a)(3).

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Accordingly, the undersigned finds that plaintiff should be entitled to continue proceeding
in forma pauperis pursuant to the appeal of this action.

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Dated: November 9, 2015

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