Penton v. Nunez

Full title: ANTHONY PENTON, Plaintiff, v. S. NUNEZ, et al., Defendants.

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Nov 9, 2015

No. 2:11-cv-0518 GEB KJN P (E.D. Cal. Nov. 9, 2015)

Opinion

No. 2:11-cv-0518 GEB KJN P

11-09-2015

ANTHONY PENTON, Plaintiff, v. S. NUNEZ, et al., Defendants.

GARLAND E. BURRELL, JR. Senior United States District Judge

ORDER

The Ninth Circuit Court of Appeals has referred to the undersigned the limited question whether plaintiff's in forma pauperis status should continue pursuant to the appeal of this court's dismissal of this action on July 28, 2015. See 28 U.S.C. § 1915(a)(3) ("An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.").¹ The Federal Rules of Appellate Procedure provide as follows:

1 The Ninth Circuit referenced two case numbers: 14-15093 and 14-15088. This response addresses both referral notices. --------

[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 . . . .

Fed. R. App. P. 24(a)(3).

This court finds no reason to revoke petitioner's in forma pauperis status. This court dismissed this action without prejudice based on plaintiff's failure to serve defendant S. Nunez pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The court did not find that plaintiff's allegations were frivolous.

Plaintiff's appeal appears to be neither frivolous, see Coppedge v. United States, 369 U.S. 438, 445 (1962) (an appeal of a nonfrivolous issue is assumed to be made in good faith), nor unreasonable, see Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000) ("to determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit"). Therefore, there does not presently appear to be a basis for finding that plaintiff's appeal is taken in bad faith. See Fed. R. App. P. 24(a)(3)(A); 28 U.S.C. § 1915(a)(3).

Accordingly, the undersigned finds that plaintiff should be entitled to continue proceeding in forma pauperis pursuant to the appeal of this action. Dated: November 9, 2015

/s/_________

GARLAND E. BURRELL, JR.

Senior United States District Judge