Harhaw v. Commissioner of Social Security

Filing 21

ORDER Denying Plaintiff's 18 Motion to Proceed IFP as Moot signed by Magistrate Judge Barbara A. McAuliffe on 04/02/2014. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN CLYDE HARHAW, Plaintiff, 12 13 14 15 16 v. CAROLYN W. COLVIN, Commissioner of Social Security, Case No. 1:12-cv-1776-BAM DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS AS MOOT (Doc. 18) Defendant. ____________________________________/ 17 18 On March 17, 2014, Plaintiff, proceeding pro se, filed a motion to continue his in forma 19 pauperis (“IFP”) status on appeal. Under 28 U.S.C. § 1915(a) the Court may waive the filing fee, 20 if a party demonstrates an inability to pay by submitting an affidavit stating all assets of the 21 individual. Receipt of IFP status is a privilege, not a right. Franklin v. Murphy, 745 F.2d 1221, 1232 (9th Cir. 1984). Federal Rule of Appellate Procedure 24(a)(3)(A) states that a party granted 22 leave to proceed IFP in district court may continue in that status on appeal unless the district court 23 certifies that appeal is not taken in good faith. Thus, a Plaintiff’s IFP status carries forward 24 throughout an appeal in the Ninth Circuit unless revoked. Ellis v. United States, 356 U.S. 674, 25 674-75 (1958); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). 26 Here, Plaintiff was granted IFP status by this Court on November 1, 2012. (Doc. 4). The 27 Ninth Circuit has not referred this matter to the Court for determination of whether Plaintiff’s IFP 28 1 2 3 4 5 6 status should continue on appeal and Plaintiff’s IFP status has not been revoked. As a result, Plaintiff’s IFP status continues on appeal. Indeed, Plaintiff’s continuing IFP status is noted in the docket entry for Plaintiff’s Notice of Appeal at Docket Number 19-1, indicating that no fee on appeal was required because Plaintiff was granted IFP. Accordingly, the Court DENIES Plaintiff's motion for continuing IFP status as moot. As explained above, Plaintiff's IFP status continues for purposes of appeal. 7 IT IS SO ORDERED. 8 9 10 Dated: /s/ Barbara April 2, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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