(PC) Brown v. Winn-Reed ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EUGENE CARLTON BROWN, Case No. 1:19-cv-00240-LJO-BAM (PC) 12 Plaintiff, Appeal No. 20-15376 13 v. ORDER REGARDING IN FORMA PAUPERIS STATUS ON APPEAL 14 WINN-REED, et al., 15 Defendants. 16 17 Plaintiff Eugene Carlton Brown, (“Plaintiff”), a state prisoner proceeding pro se and in 18 forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. On January 24, 2020, 19 the Court dismissed this action for failure to state a claim. (ECF Nos. 15, 16.) On March 4, 20 2020, Plaintiff filed a notice of appeal. (ECF No. 17.) 21 On April 6, 2020, the Ninth Circuit Court of Appeals referred the matter back to this 22 Court for the limited purpose of determining whether in forma pauperis status should continue for 23 the appeal. 28 U.S.C. § 1915(a)(3). 24 The Court finds that this appeal is not taken in bad faith and is not frivolous. Although the 25 notice of appeal was docketed on March 4, 2020, beyond the thirty days provided by Federal Rule 26 of Appellate Procedure 4(a)(1)(A), the notice of appeal is signed and dated February 10, 2020. 27 (ECF No. 17.) There is no proof of service. Pursuant to the prison mailbox rule, and without the 28 benefit of other information, the Court will treat Plaintiff’s notice of appeal as filed as of February 1 10, 2020, the date it appears it was delivered to the prison authorities for mailing to the Court. 2 See Houston v. Lack, 487 U.S. 266, 270 (1988); Douglas v. Noelle, 567 F.3d 1103, 1108–09 (9th 3 Cir. 2009) (mailbox rule articulated in Houston applies to civil rights actions). Therefore, the 4 appeal appears to be timely filed. 5 Accordingly, in forma pauperis status should not be revoked and should continue on 6 appeal. 7 IT IS SO ORDERED. 8 9 Dated: April 7, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28