Fosselman v. Gibbs et al

Filing 121

ORDER DECLINING TO CERTIFY APPEAL AS TAKEN IN BAD FAITH. Signed by Judge Phyllis J. Hamilton on 4/11/11. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 4/11/2011)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 6 LORENZO FOSSELMAN JR., 7 8 v. 9 ORDER DECLINING TO CERTIFY APPEAL AS TAKEN IN BAD FAITH RANDOLPH GIBBS, M.D., et al., 10 Defendants. / 11 For the Northern District of California United States District Court No. C 06-0375 PJH (PR) Plaintiff, 12 This is a civil rights case filed pro se by a state prisoner. The court granted 13 defendants’ motion for summary judgment. Plaintiff’s motion to alter or amend the 14 judgment was denied, and plaintiff has appealed. The United States Court of Appeals for 15 the Ninth Circuit has issued a limited remand to this court for a determination whether 16 plaintiff’s in forma pauperis status should be revoked. 17 Rule 24(a)(3) of the Federal Rules of Appellate Procedure provides that a party 18 granted leave to proceed in forma pauperis in district court may continue in that status on 19 appeal unless the district court certifies that the appeal is not taken in good faith. Section 20 1915(a)(3) of Title 28 of the United States Code similarly provides that an appeal may not 21 be taken IFP if the trial court certifies it is not taken in good faith. “Not taken in good faith” 22 means “frivolous.” Ellis v. United States, 356 U.S. 674, 674-75 (1958); Hooker v. American 23 Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (order) (equating “not taken in good faith” with 24 “frivolous”). Although plaintiff’s claims were undeniably weak, the court cannot say that the 25 appeal is frivolous. In forma pauperis status will not be revoked. 26 27 28 IT IS SO ORDERED. Dated: April 11, 2011. PHYLLIS J. HAMILTON United States District Judge P:\PRO-SE\PJH\CR.06\FOSSELMAN375.IFP-appeal.wpd

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