Tamayo v. Colvin

Filing 32

ORDER by Judge Maria-Elena James denying 28 Motion for Leave to Appeal in forma pauperis. (mejlc2S, COURT STAFF) (Filed on 7/26/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PATRICE LEAH TAMAYO, Plaintiff, 8 v. 9 ORDER RE: APPLICATION TO PROCEED IN FORMA PAUPERIS Re: Dkt. No. 28 10 NANCY A. BERRYHILL, Defendant. 11 United States District Court Northern District of California Case No. 16-cv-01947-MEJ 12 On July 13, 2017, Plaintiff Patrice Leah Tamayo filed a Notice of Appeal with the United 13 14 States Court of Appeals for the Ninth Circuit.1 Dkt. No. 30. Plaintiff filed an Application to 15 Proceed in Forma Pauperis. Appl., Dkt. No. 28. For the reasons set forth below, the Court 16 DENIES the Application. LEGAL STANDARD 17 “[A] party to a district-court action who desires to appeal in forma pauperis must file a 18 19 motion in the district court.” Fed. R. App. P. 24(a)(1). An application to proceed in forma 20 pauperis must include an affidavit that “(A) shows in the detail . . . the party’s inability to pay or to 21 give security for fees and costs; (B) claims an entitlement to redress; and (C) states the issues that 22 the party intends to present on appeal.” Fed. R. App. P. 24(a)(1)(A)-(C). 23 “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it 24 is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The good faith requirement is satisfied if the 25 petitioner seeks review of any issue that is “not frivolous.” Gardner v. Pogue, 558 F.2d 548, 551 26 (9th Cir. 1977). For purposes of § 1915, an appeal is frivolous if it lacks any arguable basis in law 27 28 1 Although the Notice of Appeal is dated July 3, 2017, it was not filed until July 13. 1 or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 2 1225 (9th Cir. 1984). DISCUSSION 3 4 Plaintiff was permitted to proceed in forma pauperis before this Court. See Dkt. No. 4. As 5 such, she “may proceed on appeal in forma pauperis without further authorization, unless . . . the 6 district court . . . certifies that the appeal is not taken in good faith or finds that the party is not 7 otherwise entitled to proceed in forma pauperis[.]” Fed. R. App. P. 24(a)(3)(A). 8 At this point, the Court cannot determine whether Plaintiff’s appeal is frivolous. 9 Nevertheless, the Court finds Plaintiff has the resources to pay the $505 filing fee for to appeal. Plaintiff lists a monthly net income of $800 and a bank account balance of $7,859.15. Appl. at 1, 11 United States District Court Northern District of California 10 3. Plaintiff does not make any mortgage or car payments. Id. at 3. Her total monthly expenses 12 amount to $834, and she appears to have no other debts. Id. (listing monthly expenses for rent, 13 utilities, food, and clothing totaling $550; listing under “other debts” expenses totaling $234 for 14 phone, contact lenses, unspecified personal items, and pet food). While Plaintiff’s monthly 15 expenses exceed her net monthly income, Plaintiff’s bank account balance shows she has 16 sufficient funds to pay the filing fee without depriving her of the ability to pay for necessities. As 17 such, the Court DENIES her Application to Proceed In Forma Pauperis. 18 IT IS SO ORDERED. 19 20 21 22 Dated: July 26, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 23 24 25 26 27 28 2

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