Stoller v. Bank of New York Mellon Trust Company et al

Filing 16

ORDER denying 12 Plaintiff's Motion for Leave to Appeal in forma pauperis. Signed by Judge G Murray Snow on 8/4/11.(TLJ)

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1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) Bank of New York Mellon Trust) ) Company, et al., ) ) Defendants. ) Christopher Stoller, No. CV 11-01105-GMS-JRI ORDER 15 Plaintiff Christopher Stoller, who is confined in the Lake County Adult Corrections 16 Facility, in Waukegan, Illinois, filed a pro se Complaint asserting fraud claims and violations 17 of his constitutional rights under 42 U.S.C. § 1983 with a pro se motion to proceed in forma 18 pauperis, which was not on this District’s court-approved form. (Doc. 1.) In an Order filed 19 on July 25, 2011, this Court denied Plaintiff’s in forma pauperis motion with leave to file a 20 new in forma pauperis application within 30 days using this District’s required form. (Doc. 21 9.) The Clerk of Court mailed Plaintiff the court-approved form. (Id.) On August 3, 2011, 22 Plaintiff filed a notice of interlocutory appeal concerning the denial of his in forma pauperis 23 motion and a motion for leave to appeal in forma pauperis. Plaintiff’s motion will be denied. 24 (Doc. 11, 12.) 25 I. Payment of Filing Fee 26 When bringing an action, a prisoner must either pay the $350.00 filing fee in a lump 27 sum or, if granted the privilege of proceeding in forma pauperis, pay the fee incrementally 28 JDDL 1 as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma pauperis requires 2 an affidavit of indigence and a certified copy of the inmate’s trust account statement for the 3 six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must 4 submit statements from each institution where he was confined during the six-month period. 5 Id. To assist prisoners in meeting these requirements, the Court requires use of a form 6 application. LRCiv 3.4(a). 7 If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an 8 initial partial filing fee of 20% of either the average monthly deposits or the average monthly 9 balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An initial 10 partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). The 11 balance of the fee will be collected in monthly payments of 20% of the preceding month’s 12 income credited to an inmate’s account, each time the amount in the account exceeds $10.00. 13 28 U.S.C. § 1915(b)(2). 14 II. Plaintiff’s Motion to Appeal In Forma Pauperis 15 16 appeal. Rule 24(a)(1) of the Federal Rules of Appellate Procedure requires a party who 17 desires to proceed in forma pauperis on appeal to file a motion in the district court which 18 includes an affidavit that: “(A) shows in the detail prescribed by Form 4 of the Appendix of 19 Forms the party’s inability to pay or to give security for fees and costs; (B) claims an 20 entitlement to redress; and (C) states the issues that the party intends to present on appeal.” 21 Fed. R. App. P. 24(a)(1). The Court will deny Plaintiff’s motion to proceed in forma 22 pauperis on appeal because he has not fully complied with Rule 24(a)(1) of the Federal Rules 23 of Appellate Procedure and because the Court finds that the interlocutory appeal of a non- 24 appealable order is an appeal that is not taken in good faith. Pursuant to Federal Rule of 25 Appellate Procedure 24(a)(4), the Court will direct the Clerk of Court to immediately notify 26 Plaintiff and the Ninth Circuit Court of Appeals of this denial. 27 / / / 28 JDDL Plaintiff asks the Court to grant him in forma pauperis status on his interlocutory / / / -2- 1 2 3 IT IS ORDERED that Plaintiff’s motion for leave to appeal in forma pauperis is denied. (Doc. 12.) DATED this 4th day of August, 2011. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL -3-

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