Johnson v. Reddy et al

Filing 39

ORDER signed by Magistrate Judge Kendall J. Newman on 2/3/2014 FINDING that plaintiff should be entitled to continue proceeding ifp pursuant to the appeal of this action. (cc: Ninth Circuit)(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND LEON JOHNSON,

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Plaintiff,

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No. 2:12-cv-1843 KJN P

v.

ORDER

MOON J. JEU, JOSEPH TORRUELLA,
and SHANKARI REDDY,
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

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dismissal of this action on December 23, 2013. See 28 U.S.C. § 1915(a)(3) (“An appeal may not

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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 has been permitted to proceed in an action in the
district court in forma pauperis . . . may proceed on appeal in forma
pauperis without further authorization unless . . . the district court
shall certify that the appeal is not taken in good faith or shall find
that the party is otherwise not entitled so to proceed . . . .

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Fed. R. App. P. 24(a).
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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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This court finds no reason to revoke petitioner’s in forma pauperis status. This court

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found that plaintiff failed to exhaust his administrative remedies as to his claims against

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defendants Jeu and Torruella, and that plaintiff failed to state a claim against defendant Reddy.

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However, the court did not find that 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

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in forma pauperis pursuant to the appeal of this action.

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Dated: February 3, 2014

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john1843.ifpapp

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