Ellawendy v. CSUMB Police Department

Background

AbelFatah Ellawendy filed a complaint and an application to proceed in forma pauperis, meaning without paying the required court fees. Magistrate Judge Susan van Keulen granted that application, screened the complaint under 28 U.S.C. § 1915, found that it did not state a claim for relief, and gave Ellawendy opportunities to amend it. Judge van Keulen later issued additional screening orders and gave Ellawendy three more opportunities to amend.

Judge van Keulen’s third screening order gave Ellawendy until August 24, 2020, to file a fourth amended complaint. It stated that if he did not do so, the case would be reassigned to a district judge with a recommendation that the case be dismissed. After Ellawendy did not file the amended complaint, Judge van Keulen recommended dismissal. No party objected within the allowed period.

On November 24, 2020, the district court adopted the recommendation but dismissed the case without prejudice because the third screening order had not stated that dismissal with prejudice would be recommended and because Ellawendy was representing himself. Ellawendy filed a notice of appeal on December 4, 2020. He alleged that he had not been served with or notified of the third screening order and that the clerk’s office had told him during calls in July, August, and September that the case was still pending and that no action was required.

Issue and standard

The Ninth Circuit referred the matter to the district court for the limited purpose of deciding whether Ellawendy could continue his fee-free status on appeal. Under Federal Rule of Appellate Procedure 24(a)(3) and 28 U.S.C. § 1915(a)(3), a party who received permission to proceed without paying fees in district court may generally continue that status on appeal unless the district court certifies that the appeal was not taken in good faith. The opinion explains that an appeal is not taken in good faith when it is frivolous.

Ruling

The court stated that it could not determine at that point that Ellawendy’s appeal was frivolous or taken in bad faith. His notice of appeal alleged that he had not received notice of the order that led to the dismissal recommendation. The court therefore continued Ellawendy’s fee-free status for purposes of the appeal under 28 U.S.C. § 1915(a)(3) and directed the clerk to notify the Ninth Circuit.

This order addressed only whether the appeal could proceed without payment of fees. It did not decide the merits of Ellawendy’s underlying claims or the merits of his appeal.