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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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 6 JOSE LUIS MORALES, 7 No. C 09-3312 PJH (PR) Plaintiff, 8 ORDER DECLINING TO CERTIFY APPEAL AS NOT TAKEN IN GOOD FAITH vs. 9 K. CRUSE, et al., Defendants. / 11 For the Northern District of California United States District Court 10 12 This is a civil rights case filed pro se by a state prisoner. The court granted 13 defendants’ motion to dismiss the case as moot, and subsequently denied plaintiff’s motion 14 to reconsider. Plaintiff appealed. The United States Court of Appeals for the Ninth Circuit 15 has remanded the case for this court to consider whether the appeal is frivolous. 16 Rule 24(a)(3) of the Federal Rules of Appellate Procedure provides that a party 17 granted leave to proceed in forma pauperis (“IFP”) in district court may continue in that 18 status on appeal unless the district court certifies that the appeal is not taken in good faith. 19 Section 1915(a)(3) of Title 28 of the United States Code similarly provides that an appeal 20 may not be taken IFP if the trial court certifies it is not taken in good faith. “Not taken in 21 good faith” means “frivolous.” Ellis v. United States, 356 U.S. 674, 674-75 (1958); Hooker 22 v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (order) (equating “not taken in 23 good faith” with “frivolous”). 24 The appeal is not frivolous. The court declines to certify the appeal as not taken in 25 good faith. The clerk shall forthwith notify plaintiff and the court of appeals of this order. 26 See R.App.P. 24(a)(4). 27 IT IS SO ORDERED. 28 Dated: October 18, 2011. PHYLLIS J. HAMILTON United States District Judge

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