Levingston v. Piburn et al

Filing 80

ORDER that the Court certifies that the appeal is frivolous. FURTHER ORDERED denying 76 Motion for Leave to Appeal in forma pauperis re 79 Notice of Appeal - Amended, 75 Notice of Appeal. (See document for full details). Signed by Magistrate Judge Lawrence O Anderson on 2/9/10.(LAD)

1 2 3 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

WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Lynnell Levingston, Plaintiff, vs. Patricia Pibrun, et al., Defendants.

) ) ) ) ) ) ) ) ) ) )

No. CV-09-8138-PCT-LOA ORDER

This matter arises on Plaintiff's Motion for Leave to Proceed In Forma Pauperis on Appeal. (docket # 76) On December 4, 2009, the Court stayed this matter until March 5, 2010 in view of Plaintiff's bankruptcy proceedings in the United States Bankruptcy Court for the District of Arizona. (docket # 73) Thereafter, Plaintiff filed a Notice of Appeal and a Motion for Leave to Proceed In Forma Pauperis on appeal. (docket ## 75, 76) Where a plaintiff has been granted leave to file the action in forma pauperis, pauper status automatically continues for the appeal unless the district court affirmatively certifies that the appeal is taken in bad faith or is frivolous. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a) (stating that leave to proceed in forma pauperis on appeal should be sought in the district court in the first instance). In this case, the Court denied Plaintiff in forma pauperis status to pursue her § 1983 action. (docket # 13) By pursuing an appeal at this time without leave of the Bankruptcy Court, Plaintiff, or even the trustee of a debtor's estate, has likely violated the automatic stay of this

1 2 3 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

case imposed by 11 U.S.C. § 362(a)(1) and her appeal is void as a matter of law. In re Capgro Leasing Assocs., 169 B.R. 305, 310 (Bankr.E.D.N.Y. 1994) ("[t]he automatic stay prevents a debtor from appealing the decision of a non-bankruptcy forum," citing, among others, Delpit v. Commissioner, 18 F.3d 768 (9th Cir. 1994)). Moreover, this interlocutory appeal is frivolous because the order Plaintiff has appealed is a non-appealable order. See 28 U.S.C. §§ 1291 and 1292. In view of the foregoing, IT IS HEREBY ORDERED that the Court certifies that the appeal is frivolous. IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to Appeal in forma pauperis, docket # 76, is DENIED. Dated this 9th day of February, 2010.

-2-