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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PATRICE LEAH TAMAYO,
Plaintiff,

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v.

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ORDER RE: APPLICATION TO
PROCEED IN FORMA PAUPERIS
Re: Dkt. No. 28

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NANCY A. BERRYHILL,
Defendant.

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United States District Court
Northern District of California

Case No. 16-cv-01947-MEJ

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On July 13, 2017, Plaintiff Patrice Leah Tamayo filed a Notice of Appeal with the United

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States Court of Appeals for the Ninth Circuit.1 Dkt. No. 30. Plaintiff filed an Application to

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Proceed in Forma Pauperis. Appl., Dkt. No. 28. For the reasons set forth below, the Court

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DENIES the Application.
LEGAL STANDARD

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“[A] party to a district-court action who desires to appeal in forma pauperis must file a

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motion in the district court.” Fed. R. App. P. 24(a)(1). An application to proceed in forma

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pauperis must include an affidavit that “(A) shows in the detail . . . the party’s inability to pay or to

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give security for fees and costs; (B) claims an entitlement to redress; and (C) states the issues that

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the party intends to present on appeal.” Fed. R. App. P. 24(a)(1)(A)-(C).

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“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it

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is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The good faith requirement is satisfied if the

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petitioner seeks review of any issue that is “not frivolous.” Gardner v. Pogue, 558 F.2d 548, 551

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(9th Cir. 1977). For purposes of § 1915, an appeal is frivolous if it lacks any arguable basis in law

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Although the Notice of Appeal is dated July 3, 2017, it was not filed until July 13.

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or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,

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1225 (9th Cir. 1984).
DISCUSSION

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Plaintiff was permitted to proceed in forma pauperis before this Court. See Dkt. No. 4. As

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such, she “may proceed on appeal in forma pauperis without further authorization, unless . . . the

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district court . . . certifies that the appeal is not taken in good faith or finds that the party is not

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otherwise entitled to proceed in forma pauperis[.]” Fed. R. App. P. 24(a)(3)(A).

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At this point, the Court cannot determine whether Plaintiff’s appeal is frivolous.

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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,

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United States District Court
Northern District of California

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3. Plaintiff does not make any mortgage or car payments. Id. at 3. Her total monthly expenses

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amount to $834, and she appears to have no other debts. Id. (listing monthly expenses for rent,

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utilities, food, and clothing totaling $550; listing under “other debts” expenses totaling $234 for

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phone, contact lenses, unspecified personal items, and pet food). While Plaintiff’s monthly

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expenses exceed her net monthly income, Plaintiff’s bank account balance shows she has

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sufficient funds to pay the filing fee without depriving her of the ability to pay for necessities. As

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such, the Court DENIES her Application to Proceed In Forma Pauperis.

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IT IS SO ORDERED.

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Dated: July 26, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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