ORDER FINDING THAT PLAINTIFF IS
ENTITLED TO PROCEED IN FORMA PAUPERIS ON APPEAL FILED MARCH 21, 2011
(ECF No. 29) ORDER DIRECTING CLERK'S OFFICE TO SERVE COPY OF ORDER ON NINTH
Francis W. Davis ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On March 11, 2011, the District Court adopted the Magistrate Judge's Findings and Recommendation dismissing Plaintiff's action, without prejudice, for failure to exhaust administrative remedies. (ECF No. 24.) On March 21, 2011, Plaintiff filed a notice of appeal and on March 30, 2011, the Ninth Circuit remanded 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. (ECF Nos. 26 & 29.)
Pursuant to the Federal Rules of Appellate Procedure, 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 and states in writing its reasons for the certification or finding; or
(B) a statute provides otherwise.
Fed. R. App. P. 24(a)(3).
The district clerk must immediately notify the parties and the court of appeals when the district court does any of the following:
(A) denies a motion to proceed on appeal in forma pauperis;
(B) certifies that the appeal is not taken in good faith; or
(C) finds that the party is not otherwise entitled to proceed in forma pauperis.
Fed. R. App. P. 24(a)(4).
Because Plaintiff is proceeding in forma pauperis in this action, Plaintiff is entitled to proceed in forma pauperis on appeal unless the Court finds his appeal is not taken in good faith or finds that he is not otherwise entitled to proceed in forma pauperis. As set forth below, by this Order the Court finds that Plaintiff is entitled to proceed in forma pauperis on appeal.
"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). "In the absence of some evident improper motive, the applicant's good faith is established by the presentation of any issue that is not plainly frivolous." Ellis v. United States, 356 U.S. 674 (1958). An action is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). In other words, the term "frivolous", as used in § 1915 and when applied to a complaint, "embraces not only the inarguable legal conclusion, but also the fanciful factual allegation." Id.
Pursuant to 28 U.S.C. § 1291, Plaintiff can appeal the Court's March 11, 2011 Order dismissing the action as a final and appealable order. Here, the Court issued a show cause order based on the information provided in the Complaint, ordering Plaintiff to show cause why his action should not be dismissed for failure to exhaust administrative remedies. (ECF Nos. 1 & 18.) In response, Plaintiff stated that his grievance and subsequent appeals were improperly screened out because of an appeal procedure that does not really exist. Plaintiff also claimed that the Court did not have authority to address his failure to exhaust because it is an affirmative defense. (ECF No. 19.) The Magistrate Judge filed a Findings and Recommendation, recommending dismissal for failure to exhaust, citing the as reasons for the dismissal Plaintiff's Complaint and appeal procedure guidelines he had violated. (ECF No. 20.) Plaintiff objected arguing that the appeal procedure guidelines were not complied with by Defendants, that the complete appeal procedure was ...