Morris v. Gonzales

Opinion

SAMMIE LEE MORRIS, Case No. 19cv2378-MMA (AGS)

Plaintiff, ORDER RESPONDING TO vs. REFERRAL NOTICE

[Doc. No. 11] GONZALES, et al., Defendants. Plaintiff Sammie Lee Morris, a state prisoner proceeding pro se, brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging that prison officials violated his Eighth and Fourteenth Amendment rights. On May 7, 2020, the Court dismissed Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and entered judgment accordingly. See Doc. Nos. 5, 6. On May 23, 2020, Plaintiff constructively filed a timely Notice of Appeal. See Doc. No. 8. The United States Court of Appeals for the Ninth Circuit now refers this matter for the “limited purpose of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith.” See Doc. No. 11. 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, which in context means that it is frivolous. See Ellis v. United States, 356 U.S. 674, 674-75 (1958). Title 28, United States Code, section 1915(a)(3), similarly provides that an appeal may not be taken IFP if the trial court certifies it is not taken in good faith. For purposes of section 1915, an appeal is “frivolous” if it lacks any arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984). After review of the record herein, the Court concludes that Plaintiff's appeal does not lack any arguable basis in law or fact, and thus should be considered as having been taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). Accordingly, the Court DECLINES to revoke Plaintiffs IFP status and DIRECTS the Clerk of the Court to notify the Ninth Circuit Court of Appeals of this Order. See Fed. R. App. P. 24(a)(4). DATE: June 9, 2020 What eke Ta = i Ls HON. MICHAEL M. ANELLO United States District Judge