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