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Luis Lorenzo Armentero v. Mariana Lotersztain

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 9, 2012

LUIS LORENZO ARMENTERO, PLAINTIFF,
v.
MARIANA LOTERSZTAIN, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

The Ninth Circuit Court of Appeals has referred to the undersigned the limited question whether plaintiff's in forma pauperis status should continue pursuant to his appeal of this court's dismissal of this action on October 18, 2012. See 28 U.S.C. § 1915(a)(3) ("An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."). The Federal Rules of Appellate Procedure provide as follows:

[A] party who has been permitted to proceed in an action in the district court in forma pauperis . . . may proceed on appeal in forma pauperis without further authorization unless . . . the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed . . . .

Fed. R. App. P. 24(a).

This court finds no reason to revoke petitioner's in forma pauperis status. This court found that the allegations of plaintiff's original complaint and amended complaint were too vague to state a cognizable Eighth Amendment claim against the only named defendant, and that further amendment would be futile. However, the court did not find that plaintiff's allegations were frivolous.

Plaintiff's appeal appears to be neither frivolous, see Coppedge v. United States, 369 U.S. 438, 445 (1962) (an appeal of a non-frivolous issue is assumed to be made in good faith), nor unreasonable, see Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000) ("to determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit"). Therefore, there does not presently appear to be a basis for finding that plaintiff's appeal is taken in bad faith. See Fed. R. App. Proc. 24(a)(3)(A); 28 U.S.C. § 1915(a)(3).

Accordingly, the undersigned finds that plaintiff should be entitled to continue proceeding in forma pauperis pursuant to his appeal of this action.

20121109

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