Allen v. Diaz

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES EDWARD ALLEN, Case No.: 21cv0602-LAB (RBM) CDCR # D-76353 12 ORDER RE REFERRAL NOTICE ON Plaintiff, 13 PLAINTIFF’S IN FORMA PAUPERIS v. STATUS ON APPEAL 14 RALPH DIAZ, et al., 15 Defendants. 16 17 18 Before the Court is a referral notice by the Ninth Circuit, dated July 27, 2022, 19 that seeks a determination whether Plaintiff Charles Edward Allen’s in forma 20 pauperis (“IFP”) status should be continued on appeal or whether the Court finds 21 the appeal to be frivolous or taken in bad faith. (Dkt. 28). Allen filed his notice of 22 appeal of the clerk’s judgment in this case on July 22, 2022. (Dkt. 25). 23 “An appeal may not be taken in forma pauperis if the trial court certifies in 24 writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). Rule 24(a) of the 25 Federal Rules of Appellate Procedure provides that: 26 [a] party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be 27 1 financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis 2 without further authorization, unless: (A) the district court— 3 before or after the notice of appeal is filed—certifies that the appeal is not taken in good faith or finds that the party 4 is not otherwise entitled to proceed in forma pauperis and 5 states in writing its reasons for the certification or finding; or (B) a statute provides otherwise. 6 7 Fed. R. App. P. 24(a)(3). For purposes of 28 U.S.C. § 1915, an appeal is frivolous 8 if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 9 (1989). 10 Upon review of Allen’s notice of appeal, the Court concludes that the appeal 11 is not frivolous or taken in bad faith, and that the IFP status should continue on 12 appeal. 13 IT IS SO ORDERED. 14 Dated: July 29, 2022 15 Honorable Larry Alan Burns United States District Judge 16

17 18 19 20 21 22 23 24 25 26 27