Davis v. Kelso et al
Filing
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ORDER Finding That Plaintiff Is Not Entitled To Proceed In Forma Pauperis On Appeal Filed June 9, 2011 (Docs. 19 , 26 , 27 , 28 ), ORDER Directing Clerk's Office To Serve Copy Of Order On Ninth Circuit, signed by District Judge Lawrence J. O'Neill on 6/16/2011.(Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CHARLES T. DAVIS,
CASE NO. 1:10-cv-01184-LJO-GBC (PC)
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Plaintiff,
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v.
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CLARK J. KELSO, et. al.,
ORDER FINDING THAT PLAINTIFF IS NOT
ENTITLED TO PROCEED IN FORMA
PAUPERIS ON APPEAL FILED JUNE 9, 2011
(Docs. 19, 26, 27, 28)
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Defendants.
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ORDER DIRECTING CLERK’S OFFICE TO
SERVE COPY OF ORDER ON NINTH
/ CIRCUIT
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Charles T. Davis (“Plaintiff’) is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 12132 (Americans with
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Disabilities Act). On June 2, 2011, the District Court adopted the Magistrate Judge’s Findings and
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Recommendation to deny Plaintiff’s motions for injunctive relief based on Plaintiff’s failure to state
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a claim upon which relief may be granted. (Doc. 26). On June 9, 2011, Plaintiff filed a notice of
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appeal (Doc. 27) and on June 10, 2011, the Ninth Circuit referred for the limited purpose of
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determining whether in forma pauperis status should continue for this appeal or whether the appeal
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is frivolous or taken in bad faith. (Doc. 33).
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Pursuant to the Federal Rules of Appellate Procedure,
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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.
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Fed. R. App. P. 24(a)(3).
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The district clerk must immediately notify the parties and the court of appeals when
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.
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Fed. R. App. P. 24(a)(4).
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Because Plaintiff is proceeding in forma pauperis in this action, Plaintiff is entitled to proceed
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in forma pauperis on appeal unless the Court finds his appeal is not taken in good faith or finds that
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he is not otherwise entitled to proceed in forma pauperis. As Plaintiff has failed to state a claim upon
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which relief may be granted, his appeal of the denial of his motions for injunctive relief is frivolous
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and is not taken in good faith.
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Based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff’s appeal is frivolous and not taken in good faith. 28 U.S.C. § 1915(a). The Clerk’s
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Office shall serve a copy of this order on the Ninth Circuit.
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IT IS SO ORDERED.
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Dated:
b9ed48
June 16, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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