Dury v. Ciufo

Filing 34

ORDER Regarding In Forma Pauperis Status on Appeal signed by District Judge Anthony W. Ishii on 11/20/2021.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTHEW JAMES DURY,

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Plaintiff,

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v.

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CASE NO. 1:13-cv-00595-AWI-BAM (PC)
APPEAL NO. 21-16841

CIUFO,

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ORDER REGARDING IN FORMA
PAUPERIS STATUS ON APPEAL
Defendant.

(ECF No. 33)

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Plaintiff Matthew James Dury is a federal prisoner who proceeded pro se and in forma

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pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Fed.

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Bureau of Narcotics, 403 U.S. 388 (1971).

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On July 30, 2014, the assigned Magistrate Judge issued findings and recommendations

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that this action be dismissed based on Plaintiff’s failure to state any claims upon which relief may

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be granted. (ECF No. 17.) On September 5, 2014, the undersigned issued an order adopting the

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findings and recommendations in full and dismissing this action for failure to state a claim upon

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which relief may be granted. (ECF No. 18.) Judgment was entered accordingly the same date.

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(ECF No. 19.)

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On March 2, 2021, Plaintiff filed a “Notice to Court.” (ECF No. 20.) Though filed as a

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“notice,” the Magistrate Judge construed this filing as a motion requesting that the Court

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immediately collect the encumbered balance from Plaintiff’s trust account, as well as review t he

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recent ruling in Plaintiff’s criminal matter. The Magistrate Judge denied both requests for lack of

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jurisdiction. (ECF No. 21.)
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Plaintiff filed a notice of appeal to the Ninth Circuit Court of Appeals on April 14, 2020.

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(ECF No. 22.) On September 17, 2021, the Ninth Circuit vacated the Magistrate Judge’s March

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3, 2020 order, because the parties had not consented to proceed before a Magistrate Judge, and

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remanded for further proceedings. (ECF No. 25.) The Ninth Circuit issued its mandate on

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October 12, 2021. (ECF No. 26.)

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Pursuant to the Ninth Circuit’s remand order, the Court reviewed Plaintiff’s “Notice to

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Court,” which the Court construed as a motion regarding filing fees. (ECF No. 20.) The motion

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was denied on October 12, 2021, and the action remained closed. (ECF No. 27.)

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On October 29, 2021, Plaintiff filed a motion regarding the Court’s October 12, 2021

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order. (ECF No. 28.) Plaintiff also filed a notice of appeal on November 1, 2021, (ECF No. 29),

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which was processed to the Ninth Circuit as Case No. 21-16841, (ECF No. 31). The Court

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construed Plaintiff’s motion as a motion for reconsideration pursuant to Federal Rule of Civil

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Procedure 60(b) and the motion was denied on November 16, 2021. (ECF No. 32.)

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By notice entered November 18, 2021, the United States Court of Appeals for the Ninth

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Circuit referred this matter to the District Court for the limited purpose of determining whether in

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forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken

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in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091,

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1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the district court

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finds the appeal to be frivolous).

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Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v.

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Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir.

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1968), cert. denied, 393 U.S. 891 (1968); Williams v. Marshall, 795 F.Supp. 978, 978–79 (N.D.

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Cal. 1992). A federal court may dismiss a claim filed in forma pauperis before service if it is

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satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2); see Sully v. Lungren,

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842 F. Supp. 1230, 1231 (N.D. Cal. 1994). If a plaintiff with in forma pauperis status brings a

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case without arguable substance in law and fact, the court may declare the case frivolous.

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Franklin, 745 F.2d at 1227.

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Upon review of Plaintiff’s November 1, 2021 notice of appeal, the Court finds that the
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appeal is frivolous and not taken in good faith. Plaintiff argues that the Court’s October 12, 2021

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order is in violation of United States Law, specifically the RICO Act, 18 U.S.C. § 1963, and

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accuses the undersigned of being a domestic terrorist aiding in the rape and torture of Plaintiff by

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Bureau of Prisons staff. (See ECF No. 29, p. 1.) Plaintiff also alleges that he “will personally

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cause the Arrest of Anthony Ishii for ‘Crimes Against Humanity’ along with all BOP Officials

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involved.” (Id. at 2.) The notice of appeal continues in this fashion, and the undersigned declines

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to summarize the remaining frivolous allegations contained therein.

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Accordingly, IT IS HEREBY ORDERED that:
1. The appeal is declared frivolous and not taken in good faith;
2. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma pauperis
in Appeal No. 21-16841, filed November 1, 2021;

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3. Pursuant to Federal Rule of Appellate Procedure 24(a)(4), this order serves as notice to the

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parties and the United States Court of Appeals for the Ninth Circuit of the finding that

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Plaintiff is not entitled to proceed in forma pauperis for this appeal; and

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4. The Clerk of the Court is directed to serve a copy of this order on the parties and the
United States Court of Appeals for the Ninth Circuit.

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IT IS SO ORDERED.
Dated: November 20, 2021
SENIOR DISTRICT JUDGE

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