Opinion
CASE NO. 1:10-cv-01177-GBC (PC)
08-04-2011
PEDRO HONESTO, Plaintiff, v. ARNOLD SCHWARTZENEGGER, et al., Defendants.
ORDER FINDING THAT PLAINTIFF IS ENTITLED TO PROCEED IN FORMA
PAUPERIS ON APPEAL FILED JULY 28, 2011
(ECF No. 22)
ORDER DIRECTING CLERK'S OFFICE TO SERVE COPY OF ORDER ON NINTH
CIRCUIT
ORDER
Pedro Honesto ("Plaintiff") proceeded pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On July 14, 2011, the Court dismissed Plaintiff's action, with prejudice, for failure to state any cognizable claims. (ECF No. 17.) On July 28, 2011, Plaintiff filed a notice of appeal and on August 3, 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. 19 & 22.)
Pursuant to the Federal Rules of Appellate Procedure,Fed. R. App. P. 24(a)(3).
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:
(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 July 14, 2011 Order dismissing the action as a final and appealable order. Here, the Court issued an order dismissing the action due to Plaintiff's repeated failure to state any cognizable claims. (ECF No. 17.)
Given that Plaintiff's action was dismissed for failure to state a claim and the absence of apparent 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.
UNITED STATES MAGISTRATE JUDGE ____