Morales v. Cruse et al

Filing 25

ORDER DECLINING TO CERTIFY APPEAL AS NOT TAKEN IN GOOD FAITH. Signed by Judge Phyllis J. Hamilton on 10/18/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 10/18/2011)

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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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JOSE LUIS MORALES,
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No. C 09-3312 PJH (PR)

Plaintiff,
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ORDER DECLINING TO
CERTIFY APPEAL AS NOT
TAKEN IN GOOD FAITH

vs.
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K. CRUSE, et al.,
Defendants.
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For the Northern District of California

United States District Court

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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 to dismiss the case as moot, and subsequently denied plaintiff’s motion
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to reconsider. Plaintiff appealed. The United States Court of Appeals for the Ninth Circuit
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has remanded the case for this court to consider whether the appeal is frivolous.
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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 (“IFP”) in district court may continue in that
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status on appeal unless the district court certifies that the appeal is not taken in good faith.
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Section 1915(a)(3) of Title 28 of the United States Code similarly provides that an appeal
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may not be taken IFP if the trial court certifies it is not taken in good faith. “Not taken in
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good faith” means “frivolous.” Ellis v. United States, 356 U.S. 674, 674-75 (1958); Hooker
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v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (order) (equating “not taken in
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good faith” with “frivolous”).
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The appeal is not frivolous. The court declines to certify the appeal as not taken in
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good faith. The clerk shall forthwith notify plaintiff and the court of appeals of this order.
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See R.App.P. 24(a)(4).
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IT IS SO ORDERED.
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Dated: October 18, 2011.
PHYLLIS J. HAMILTON
United States District Judge