Tennison-v-Minix et.al.

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)

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