Williams v. Schulties et al
Filing
29
NOTICE AND ORDER FINDING THAT PLAINTIFF IS NOT ENTITLED TO PROCEED IN FORMA PAUPERIS ON THE APPEAL FILED FEBRUARY 12, 2010; ORDER DIRECTING Clerk's Office to Serve Copy of Order on Ninth Circuit signed by Judge Oliver W. Wanger on 3/1/2010. (Sant Agata, S)
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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 Plaintiff Steven Williams is a prisoner who was proceeding pro se and in forma pauperis in 17 this civil rights action pursuant to 42 U.S.C. § 1983. On January 25, 2010, the Court dismissed this 18 action, with prejudice, based on Plaintiff's failure to state a claim upon which relief may be granted 19 and judgment was entered. (Docs. 23, 24.) Plaintiff filed a notice of appeal on February 12, 2010. 20 (Doc. 25.) 21 Pursuant to the Federal Rules of Appellate Procedure, 22 23 24 25 26 27 28 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 1 / v. L. L. SCHULTIES, et al., Defendants. ORDER DIRECTING CLERK'S OFFICE TO SERVE COPY OF ORDER ON NINTH CIRCUIT STEVEN WILLIAMS, Plaintiff, CASE NO. 1:09-cv-00118-OWW-SMS PC
U N IT ED ST A T ES D IS T R IC T COU R T
APPEAL NO. 10-15339 NOTICE AND ORDER FINDING THAT PL AI NT I FF IS NOT ENTITLED TO PROCEED IN FORMA PAUPERIS ON THE APPEAL FILED FEBRUARY 12, 2010
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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).
4 Because Plaintiff was proceeding in forma pauperis in this action in the district court, 5 Plaintiff is entitled to proceed in forma pauperis on appeal unless the Court makes a finding to the 6 contrary. For the reason that follows, the Court finds that Plaintiff is not entitled to proceed in forma 7 pauperis on his appeal filed February 12, 2010. 8 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that "[i]n 9 no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more 10 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court 11 of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 12 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 13 physical injury." Plaintiff became subject to section 1915(g) on January 25, 2010, when his third 14 15 is subject to section 1915(g) and does not meet the imminent danger exception, Plaintiff is not 16 entitled to proceed in forma pauperis on appeal. Fed. R. App. P. 24(a)(4)(C). 17 Based on the foregoing, it is HEREBY ORDERED that: 18 1. 19 on the appeal filed on February 12, 2010; 20 2. 21 notice to the parties and the United States Court of Appeals for the Ninth Circuit of 22 the finding that Plaintiff is not entitled to proceed in forma pauperis for this appeal; 23 and 24 /// 25 26 27 28
1 The Court takes judicial notice of the following cases: 1:08-cv-01187-DGC W illia m s v. Sullivan, et al., ( E .D . Cal.) (dismissed 07/01/2009 for failure to state a claim), 2:03-cv-02044-LKK-JFM W illia m s v. Sandham, et a l., (E.D. Cal.) (dismissed 08/07/2009 for failure to state a claim), and 1:09-cv-00118-OW W -S M S W illia m s v. S c h u ltie s , et al., (E.D. Cal.) (dismissed 01/25/2010 for failure to state a claim).
action was dismissed for failure to state a claim upon which relief may be granted.1 Because Plaintiff
Pursuant to 28 U.S.C. § 1915(g), Plaintiff is not entitled to proceed in forma pauperis
Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(C), this order serves as
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The Clerk of the Court shall serve a copy of this order on Plaintiff and the United States Court of Appeals for the Ninth Circuit.
IT IS SO ORDERED. Dated: March 1, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE
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