No. CIV S-10-0377 WBS CMK (TEMP) P CCA No. 11-17339
This matter has been referred to this court by the Court of Appeals for the limited purpose of determining whether forma pauperis status should continue on appeal or whether the appeal is frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3).
This court dismissed plaintiff's action brought under 42 U.S.C. § 1983 without prejudice because he had failed to exhaust his administrative remedies. See 42 U.S.C. § 1997e(a). While the court continues to believe its decision was correct, plaintiff did file an administrative grievance, which this court found to be untimely. In part because this court is not aware of the grounds upon which plaintiff seeks to appeal, it cannot conclude that the appeal is frivolous or taken in bad faith. Accordingly, the court declines to revoke plaintiff's forma pauperis status. The Clerk of this court is directed to transmit a copy of this Order to the Clerk of the United States Court of Appeals for the Ninth Circuit.
IT IS SO ORDERED.
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE