Allen v. Diaz et al

Filing 29

ORDER re 28 Referral Notice on Plaintiff's in forma pauperis Status on Appeal. Upon review of Allen's notice of appeal, the Court concludes that the appeal is not frivolous or taken in bad faith, and that the IFP status should continue on appeal. Signed by Judge Larry Alan Burns on 7/29/2022. (USCA Case Number 22-55712. Order electronically transmitted to the US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHARLES EDWARD ALLEN,
CDCR # D-76353

Case No.: 21cv0602-LAB (RBM)
ORDER RE REFERRAL NOTICE ON
PLAINTIFF’S IN FORMA PAUPERIS
STATUS ON APPEAL

Plaintiff,
v.
RALPH DIAZ, et al.,
Defendants.

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Before the Court is a referral notice by the Ninth Circuit, dated July 27, 2022,

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that seeks a determination whether Plaintiff Charles Edward Allen’s in forma

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pauperis (“IFP”) status should be continued on appeal or whether the Court finds

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the appeal to be frivolous or taken in bad faith. (Dkt. 28). Allen filed his notice of

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appeal of the clerk’s judgment in this case on July 22, 2022. (Dkt. 25).

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“An appeal may not be taken in forma pauperis if the trial court certifies in

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writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). Rule 24(a) of the

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Federal Rules of Appellate Procedure provides that:

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[a] party who was permitted to proceed in forma pauperis
in the district-court action, or who was determined to be

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21cv0602-LAB (RBM)

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financially unable to obtain an adequate defense in a
criminal case, may proceed on appeal in forma pauperis
without further authorization, unless: (A) the district court—
before or after the notice of appeal is filed—certifies that
the appeal is not taken in good faith or finds that the party
is not otherwise entitled to proceed in forma pauperis and
states in writing its reasons for the certification or finding;
or (B) a statute provides otherwise.

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Fed. R. App. P. 24(a)(3). For purposes of 28 U.S.C. § 1915, an appeal is frivolous

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if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325

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(1989).

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Upon review of Allen’s notice of appeal, the Court concludes that the appeal

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is not frivolous or taken in bad faith, and that the IFP status should continue on

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appeal.

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IT IS SO ORDERED.
Dated: July 29, 2022
Honorable Larry Alan Burns
United States District Judge

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21cv0602-LAB (RBM)