Ellawendy v. CSUMB Police Department

Opinion

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 ABELFATAH ELLAWENDY, Case No. 19-CV-08417-LHK

13 Plaintiff, ORDER CONTINUING PLAINTIFF’S IN FORMA PAUPERIS STATUS 14 v. Re: Dkt. No. 21 15 CSUMB POLICE DEPARTMENT, et al., 16 Defendant. 17 18 Before the Court is the Ninth Circuit’s referral to this Court for a determination of whether 19 to continue Plaintiff AbelFatah Ellawendy’s (“Plaintiff”) in forma pauperis status. 9th Cir. Case 20 No. 20-17376, ECF No. 2. Having considered the relevant law and the record in this case, the 21 Court CONTINUES Plaintiff’s in forma pauperis status. 22 I. BACKGROUND 23 On December 26, 2019, Plaintiff filed a complaint and an application to proceed in forma 24 pauperis. ECF Nos. 1–2. On February 6, 2020, United States Magistrate Judge Susan van Keulen 25 granted Plaintiff’s application to proceed in forma pauperis, screened Plaintiff’s complaint under 26 28 U.S.C. § 1915, concluded that Plaintiff’s complaint failed to state a claim for relief, and granted 27 Plaintiff an opportunity to amend his complaint. ECF No. 8. Since February 6, 2020, Judge van 1 Keulen issued two other screening orders and granted Plaintiff three other opportunities to amend 2 his complaint. ECF Nos. 11, 13, 15. 3 Specifically, on August 11, 2020, Judge van Keulen issued her Third Screening Order, 4 which granted Plaintiff leave to file a Fourth Amended Complaint by August 24, 2020 and stated 5 that “[i]f Plaintiff does not file a fourth amended complaint, the Court will issue an order 6 reassigning this case to a District Judge along with a recommendation that [the] entire case be 7 dismissed.” ECF No. 15 at 13. As of November 6, 2020, Plaintiff had not filed a Fourth Amended 8 Complaint. Accordingly, on November 6, 2020, Judge van Keulen issued an order reassigning the 9 instant case to a district judge and a Report & Recommendation recommending that the district 10 judge dismiss this case with prejudice. ECF No. 16. 11 As of November 24, 2020, no party had objected to the Report & Recommendation within 12 the 14-day period allowed for objections, and Plaintiff had not filed a Fourth Amended Complaint. 13 Accordingly, on November 24, 2020, this Court adopted Judge van Keulen’s Report & 14 Recommendation, except that the Court dismissed the case without prejudice because Judge van 15 Keulen’s Third Screening Order did not specify that she would recommend that the case would be 16 dismissed with prejudice and because Plaintiff is pro se. ECF No. 18. 17 On December 4, 2020, Plaintiff filed a notice of appeal to the Ninth Circuit. ECF No. 20. 18 The notice of appeal alleges that “Plaintiff was neither served nor notified about the order made 19 [o]n August 24th 2020”1 and “Plaintiff called the [C]lerk[’s] office in July, Aug[ust], and 20 Sept[ember] to check on the case status and was informed that the case is still pending and no 21 action was required.” Id. 22 On December 9, 2020, the Ninth Circuit referred this matter to the Court “for the limited 23 purpose of determining whether in forma pauperis status should continue for this appeal.” 9th Cir. 24 Case No. 20-17376, ECF No. 2. 25 26 1 The Court assumes that Plaintiff intends to refer to Judge van Keulen’s Third Screening Order, 27 which was issued on August 11, 2020 and gave Plaintiff until August 24, 2020 to file a Fourth Amended Complaint. II. DISCUSSION

5 Rule 24(a)(3) of the Federal Rules of Appellate Procedure provides that a party granted 3 leave to proceed in forma pauperis in district court may continue in that status on appeal unless the

4 district court certifies that the appeal is not taken in good faith. Section 1915(a)(3) of Title 28 of

5 the United States Code similarly provides that an appeal may not be taken in forma pauperis if the

‘ trial court certifies it is not taken in good faith. “Not taken in good faith” means “frivolous.” Ellis

4 v. United States, 356 U.S. 674, 674-75 (1958); Hooker v. American Airlines, 302 F.3d 1091, 1092

(9th Cir. 2002) (revocation of forma pauperis status is appropriate where district court finds the

9 appeal to be frivolous). 10 Judge van Keulen recommended that the case be dismissed because Plaintiff had not filed a

Fourth Amended Complaint following Judge van Keulen’s Third Screening Order. ECF No. 16 at

. 2 2 (“As of the date of this order, Plaintiff has not filed a fourth amended complaint. Accordingly, E 3 the undersigned [recommends] that upon reassignment, the District Judge dismiss the case with S 4 prejudice.”). However, in Plaintiffs notice of appeal, Plaintiff alleges that he never received 3 15 notice of Judge van Keulen’s Third Screening Order. ECF No. 20. Accordingly, the Court cannot 6 find at this point that the appeal is frivolous or is taken in bad faith. Thus, Plaintiffs in forma 5 pauperis status may continue for purposes of appeal. 18 I. CONCLUSION

19 Based on the foregoing, pursuant to 28 U.S.C. § 1915(a)(3), the Court hereby 50 CONTINUES Plaintiff's in forma pauperis status.

The Clerk shall notify the Ninth Circuit of the Court’s instant order.

IT IS SO ORDERED.

23 34 Dated: December 11, 2020 Kl Ky f 2 LUCY KOH United States District Judge 27 28 Case No. 19-CV-O8417-LHK