Hackett v. City of Fresno Fax Area Express, et al.

Filing 9

ORDER denying 8 Motion to Proceed IFP on Appeal signed by District Judge Lawrence J. O'Neill on 8/23/2011. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ERIC LEE HACKETT,
Plaintiff,

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CASE NO. 1:11-cv-01295-LJO-GBC (PC)
(USCA CASE NO. 11-16937)

v.

ORDER DENYING PLAINTIFF’S
APPLICATION TO PROCEED IN FORMA
CITY OF FRESNO FAX AREA EXPRESS, PAUPERIS ON THE APPEAL FILED
et al.,
AUGUST 11, 2011

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Defendants.

(ECF No. 8.)

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CLERK’S OFFICE TO SERVE COPY OF
/ ORDER ON NINTH CIRCUIT

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ORDER
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Plaintiff Eric Lee Hackett is a prisoner who was proceeding pro se in this civil rights
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action pursuant to 42 U.S.C. § 1983. On August 8, 2011, the Court dismissed this action,
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without prejudice, based on the fact that Plaintiff has filed three or more actions1 which

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were dismissed for failure to state a claim, making him subject to Section 1915(g) and
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judgment was entered. (ECF Nos. 3 & 4.) Plaintiff filed a notice of appeal on August 11,
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2011. (ECF No. 5.) Then, on August 19, 2011, Plaintiff filed an application to proceed in
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The Court takes judicial notice of the following cases: Hackett v. Taylor, 1:01-cv-06076-OW W SMS (E.D. Cal.) (Dism issed 08/22/2002 for failure to state a claim ); Hackett v. Taylor, 1:02-cv-05440OW W -SMS (E.D. Cal.) (Dism issed 08/23/2002 for failure to state a claim ); Hackett v. Schwarzenegger,
1:04-cv-05124-OW W -SMS (Dism issed 08/04/2005 for failure to state a claim ); Hackett v. City of Fresno,
1:06-cv-01123-OW W -SMS (E.D. Cal.) (Dism issed 11/16/2006 for failure to state a claim ). See also
Hackett v. City of Fresno Fax Area Bus, 1:09-cv-00140-OW W -GSA (E.D. Cal.) (Dism issed 10/23/2009;
Court determ ined that Plaintiff was not eligible to proceed in form a pauperis pursuant to Section 1915
because he was a three-striker).

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forma pauperis on his appeal. (ECF No. 8.) This Motion is now before the Court.

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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides

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that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner

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has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought

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an action or appeal in a court of the United States that was dismissed on the grounds that

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it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless

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the prisoner is under imminent danger of serious physical injury.”

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Because Plaintiff is subject to Section 1915(g) and does not meet the imminent

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danger exception, Plaintiff is not entitled to proceed in forma pauperis on appeal. Fed. R.

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App. P. 24(a)(4)(C).

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Pursuant to 28 U.S.C. § 1915(g), Plaintiff is not entitled to proceed in forma
pauperis on the appeal filed on August 11, 2011;

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2.

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Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(C), this Order

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serves as notice to the parties and the United States Court of Appeals for the

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Ninth Circuit of the finding that Plaintiff is not entitled to proceed in forma

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pauperis for this appeal; and
3.

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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.

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IT IS SO ORDERED.

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Dated:
b9ed48

August 23, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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