Opinion
CASE NO. 1:10-cv-00779-GBC (PC)
08-11-2011
JAMES JAMIL GARRETT, Plaintiff, v. MYERS, et al., Defendants.
ORDER FINDING THAT PLAINTIFF IS
ENTITLED TO PROCEED IN FORMA
PAUPERIS ON APPEAL FILED AUGUST 3, 2011
(ECF No. 26)
ORDER DIRECTING CLERK'S OFFICE TO
SERVE COPY OF ORDER ON NINTH CIRCUIT
ORDER
James Jamil Garrett ("Plaintiff") proceeded pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On June 15, 2011, the Court dismissed Plaintiff's action, without prejudice, for failure to exhaust administrative remedies. (ECF No. 19.) On August 3, 2011, Plaintiff filed a notice of appeal and on August 9, 2011, the Ninth Circuit remanded for the limited purpose of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith. (ECF Nos. 23 & 26.)
Pursuant to the Federal Rules of Appellate Procedure,
A party who was permitted to proceed in forma pauperis in the district-court action . . . may proceed on appeal in forma pauperis without further authorization, unless:Fed. R. App. P. 24(a)(3).
(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.
The district clerk must immediately notify the parties and the court of appeals when the district court does any of the following:Fed. R. App. P. 24(a)(4).
(A) denies a motion to proceed on appeal in forma pauperis;
(B) certifies that the appeal is not taken in good faith; or
(C) finds that the party is not otherwise entitled to proceed in forma pauperis.
Because Plaintiff proceeded in forma pauperis in this action, Plaintiff is entitled to proceed in forma pauperis on appeal unless the Court finds his appeal is not taken in good faith or finds that he is not otherwise entitled to proceed in forma pauperis. As set forth below by this Order, the Court finds that Plaintiff is entitled to proceed in forma pauperis on appeal.
"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). "In the absence of some evident improper motive, the applicant's good faith is established by the presentation of any issue that is not plainly frivolous." Ellis v. United States, 356 U.S. 674 (1958). An action is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). In other words, the term "frivolous", as used in § 1915 and when applied to a complaint, "embraces not only the inarguable legal conclusion, but also the fanciful factual allegation." Id.
Pursuant to 28 U.S.C. § 1291, Plaintiff can appeal the Court's June 15, 2011 Order dismissing the action as a final and appealable order. Here, the Court an Order dismissing the action because Plaintiff had failed to exhaust his administrative remedies before filing his Complaint. (ECF No. 19.)
Given that Plaintiff's action was dismissed for failure to exhaust administrative remedies and the absence of improper motive, Plaintiff's appeal is not plainly frivolous. It does not appear to lack an arguable basis either in law or in fact.
Based on the foregoing, it is HEREBY ORDERED that:
Plaintiff's appeal is taken in good faith. 28 U.S.C. § 1915(a). The Clerk's Office shall serve a copy of this order on the Ninth Circuit.
IT IS SO ORDERED.
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UNITED STATES MAGISTRATE JUDGE