Opinion
No. C 09-3312 PJH (PR)
10-18-2011
JOSE LUIS MORALES, Plaintiff, v. K. CRUSE, et al., Defendants.
ORDER DECLINING TO CERTIFY APPEAL AS NOT TAKEN IN GOOD FAITH
This is a civil rights case filed pro se by a state prisoner. The court granted defendants' motion to dismiss the case as moot, and subsequently denied plaintiff's motion to reconsider. Plaintiff appealed. The United States Court of Appeals for the Ninth Circuit has remanded the case for this court to consider whether the appeal is frivolous.
Rule 24(a)(3) of the Federal Rules of Appellate Procedure provides that a party granted leave to proceed in forma pauperis ("IFP") in district court may continue in that status on appeal unless the district court certifies that the appeal is not taken in good faith. Section 1915(a)(3) of Title 28 of the United States Code similarly provides that an appeal may not be taken IFP if the trial court certifies it is not taken in good faith. "Not taken in good faith" means "frivolous." Ellis v. United States, 356 U.S. 674, 674-75 (1958); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (order) (equating "not taken in good faith" with "frivolous").
The appeal is not frivolous. The court declines to certify the appeal as not taken in good faith. The clerk shall forthwith notify plaintiff and the court of appeals of this order. See R.App.P. 24(a)(4).
IT IS SO ORDERED.
PHYLLIS J. HAMILTON
United States District Judge