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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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LORENZO FOSSELMAN JR.,

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v.

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ORDER DECLINING TO
CERTIFY APPEAL AS
TAKEN IN BAD FAITH

RANDOLPH GIBBS, M.D., et al.,

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Defendants.
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For the Northern District of California

United States District Court

No. C 06-0375 PJH (PR)

Plaintiff,

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This is a civil rights case filed pro se by a state prisoner. The court granted

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defendants’ motion for summary judgment. Plaintiff’s motion to alter or amend the

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judgment was denied, and plaintiff has appealed. The United States Court of Appeals for

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the Ninth Circuit has issued a limited remand to this court for a determination whether

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plaintiff’s in forma pauperis status should be revoked.

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Rule 24(a)(3) of the Federal Rules of Appellate Procedure provides that a party

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granted leave to proceed in forma pauperis in district court may continue in that status on

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appeal unless the district court certifies that the appeal is not taken in good faith. Section

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1915(a)(3) of Title 28 of the United States Code similarly provides that an appeal may not

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be taken IFP if the trial court certifies it is not taken in good faith. “Not taken in good faith”

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means “frivolous.” Ellis v. United States, 356 U.S. 674, 674-75 (1958); Hooker v. American

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Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (order) (equating “not taken in good faith” with

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“frivolous”). Although plaintiff’s claims were undeniably weak, the court cannot say that the

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appeal is frivolous. In forma pauperis status will not be revoked.

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IT IS SO ORDERED.
Dated: April 11, 2011.
PHYLLIS J. HAMILTON
United States District Judge
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