Su v. Defense Language Institute Foreign Language Center & POM

Filing 49

ORDER DENYING IN FORMA PAUPERIS STATUS ON APPEAL. The court certifies that Plaintiff's appeal is not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and denies in forma pauperis status for the current appellate proceedings. Signed by Judge Edward J. Davila on 11/20/2012. (ejdlc1, COURT STAFF) (Filed on 11/20/2012) (Additional attachment(s) added on 11/20/2012: # 1 Certificate of Service) (ecg, COURT STAFF).

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN JOSE DIVISION
CASE NO. 5:10-cv-04194 EJD

DANTAO SU,

11

ORDER DENYING IN FORMA PAUPERIS
STATUS ON APPEAL

Plaintiff(s),
For the Northern District of California

United States District Court

10

12
13

v.
DEFENSE LANGUAGE INSTITUTE
FOREIGN LANGUAGE CENTER, et. al.,

[Docket Item No(s). 48]

14
15

Defendant(s).
/

16
17

On October 16, 2012, this court dismissed Plaintiff Dantao Su’s (“Plaintiff”) complaint

18

without prejudice pursuant to Federal Rule of Civil Procedure 4(m) after Plaintiff failed to provide

19

Summons forms as directed and in turn failed to effectuate service within the time provided by the

20

Rule. See Docket Item Nos. 45. Plaintiff has appealed from that order (see Docket Item No. 46),

21

and the Court of Appeals has requested that this court determine whether Plaintiff should retain in

22

forma pauperis status on appeal.

23

“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is

24

not taken in good faith.” 28 U.S.C. § 1915(a)(3). This section is generally construed to mean that

25

an appeal must not be frivolous. See, e.g., Coppedge v. United States, 369 U.S. 438, 445 (1962)

26

(holding that the term “‘good faith’ . . . must be judged by an objective standard” and is

27

demonstrated when appellant seeks review “of any issue not frivolous.”); Ellis v. United States, 356

28

U.S. 674, 674 (1958) (“In the absence of some evident improper motive, the applicant’s good faith is
1
Case No. 5:10-cv-04194 EJD
ORDER DENYING IN FORMA PAUPERIS STATUS ON APPEAL

1

established by the presentation of any issue that is not plainly frivolous.”); Hooker v. American

2

Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (“If at least one issue or claim is found to be

3

non-frivolous, leave to proceed in forma pauperis on appeal must be granted for the case as a

4

whole.”).

5

Having reviewed this matter, the court concludes there are no valid grounds on which to base

6

an appeal. Accordingly, the court certifies that Plaintiff’s appeal is not taken in good faith pursuant

7

to 28 U.S.C. § 1915(a)(3) and denies in forma pauperis status for the current appellate proceedings.

8

IT IS SO ORDERED.

9

11
For the Northern District of California

United States District Court

10

Dated: November 20, 2012
EDWARD J. DAVILA
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Case No. 5:10-cv-04194 EJD
ORDER DENYING IN FORMA PAUPERIS STATUS ON APPEAL