Opinion
No. 2:12-cv-2513 JAM AC PS
12-31-2013
SANDRA E. WILLIAMS, Plaintiff, v. BANK OF AMERICA CORP., ET AL., Defendants.
ORDER
Plaintiff filed this action on October 9, 2012 asserting both state and federal claims relating to her home mortgage loan. Plaintiff paid the filing fee in full at that time. On June 18, 2013, this case was closed following dismissal of plaintiff's federal claims without leave to amend. ECF No. 41. On July 3, 2013, plaintiff filed a notice of appeal, but did not pay the filing fee. She has also now filed a motion to proceed in forma pauperis.
All parties appealing a civil action, suit, or proceeding, must pay a filing fee to the district court. See 28 U.S.C. § 1917(a); Fed. R. App. P.3. An action may proceed despite a party's failure to pay only if the party is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a); Fed. R. App. P. 24. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999); Smith v. Johnson, 109 F.2d 152, 154 (9th Cir. 1940). "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).
"To proceed in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). "It is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis. Id; see also Jefferson v. United States, 277 F.2d 723, 724-25 (9th Cir. 1960).
The court has reviewed plaintiff's affidavit showing that plaintiff is unable to prepay fees and costs or give security for them. The court also finds that the appeal is taken in good faith. Where there is no evidence of improper motive, the applicant's good faith is established by the presentation of any issue that is not plainly frivolous. Wooten v. District of Columbia Metropolitan Police, 129 F.3d 206, 208 (D.C. Cir. 1997) (citing Ellis v. United States, 356 U.S. 674 (1978)).
Accordingly, IT IS HEREBY ORDERED that plaintiff's request to proceed in forma pauperis is granted.
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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE