Filing 18

ORDER CERTIFYING APPEAL AS NOT TAKEN IN GOOD FAITH. Signed by Judge Phyllis J. Hamilton on 9/6/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 9/6/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 JAMES FREEMAN TENNISON, Plaintiff, 8 v. 9 ORDER CERTIFYING APPEAL AS NOT TAKEN IN GOOD FAITH PRISON HEALTH SERVICES, et al., Defendants. 11 For the Northern District of California United States District Court 10 No. C 11-1718 PJH (PR) / 12 13 This is a section 1983 action brought pro se by a former inmate of the Alameda 14 County Jail He was granted leave to proceed in forma pauperis ("IFP"). The case was 15 dismissed on initial review because plaintiff conceded in the complaint that his 16 administrative appeal was not decided until April 15, 2011, after this case was filed. See 17 O'Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1061 (9th Cir. 2007) (If ADA or 18 Rehabilitation Act complaint concerns prison conditions, exhaustion required under the 19 PLRA exhaustion provision); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) 20 (complaint may be dismissed without prejudice if prisoner concedes nonexhaustion); 21 McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (exhaustion must be completed 22 before a complaint is filed, not afterwards). Plaintiff filed a notice of appeal. The Ninth 23 Circuit Court of Appeals has asked this court to determine if the appeal is taken in good 24 faith. 25 Rule 24(a)(3) of the Federal Rules of Appellate Procedure provides that a party 26 granted leave to proceed in forma pauperis in district court may continue in that status on 27 appeal unless the district court certifies that the appeal is not taken in good faith. Section 28 1915(a)(3) of Title 28 of the United States Code similarly provides that an appeal may not 1 be taken IFP if the trial court certifies it is not taken in good faith. "Not taken in good faith" 2 means "frivolous." Ellis v. United States, 356 U.S. 674, 674-75 (1958); Hooker v. American 3 Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (order) (equating "not taken in good faith" with 4 "frivolous"). 5 Because the court's ruling was clearly correct, it is CERTIFIED that this appeal is 6 frivolous and therefore not taken in good faith. The clerk shall forthwith notify plaintiff and 7 the court of appeals of this order. See R.App.P. 24(a)(4). 8 IT IS SO ORDERED. 9 Dated: September 6, 2011. PHYLLIS J. HAMILTON United States District Judge 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 P:\PRO-SE\PJH\CR.11\TENNISON1718.APP.wpd 28 2

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