Garcia, Jr. v. Tulare County Main Jail et al

Filing 58

ORDER Regarding In Forma Pauperis Status on Appeal re 57 USCA Order, signed by Magistrate Judge Barbara A. McAuliffe on 10/5/18. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OMAR GARCIA, JR.,

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Plaintiff,

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v.

Case No. 1:14-cv-00476-BAM (PC)
Appeal No. 18-16707
ORDER REGARDING IN FORMA PAUPERIS
STATUS ON APPEAL

TULARE COUNTY MAIN JAIL, et al.,
(ECF No. 57)

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Defendants.

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Plaintiff Omar Garcia, Jr., (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, initiated this civil rights action pursuant to 42 U.S.C. § 1983 while he was detained at

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the Bob Wiley Detention Facility in Visalia, California. All parties consented to the jurisdiction

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of a United States Magistrate Judge. (ECF Nos. 5, 19.)
On August 16, 2017, Defendants moved for summary judgment in this action. Plaintiff

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filed an opposition which failed to comply with Federal Rule of Civil Procedure 56(c)(1)(A) and

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Local Rule 260(b), and with the consent of Defendants, the Court granted Plaintiff an opportunity

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to file a supplemental response. Plaintiff was granted an extension of time, but thereafter failed to

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file his response or otherwise communicate with the Court.
On June 7, 2018, the Court dismissed this action, with prejudice, for failure to prosecute

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and failure to obey court orders. Judgment was entered the same date. (ECF Nos. 50, 51.)

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On July 30, 2018, Plaintiff filed a motion for relief from default, which the Court

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construed as a motion for reconsideration pursuant to Federal Rule of Civil Procedure 60(b).

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Plaintiff argued that he was entitled to relief from judgment because his failure to file a response

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was due to the actions and inactions of Plaintiff’s jailhouse lawyer, Inmate Chavira. (ECF No.

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52.) The Court denied the motion, finding that Plaintiff failed to demonstrate “both injury and

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circumstances beyond his control.” (ECF No. 53 (quoting Latshaw v. Trainer Wortham & Co.,

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Inc., 452 F.3d 1097, 1103 (9th Cir. 2008).) On September 6, 2018, Plaintiff filed a notice of

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appeal. (ECF No. 54.)

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On October 2, 2018, the Ninth Circuit Court of Appeals referred the matter back to this

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Court for the limited purpose of determining whether in forma pauperis status should continue for

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the appeal. See 28 U.S.C. § 1915(a)(3); see also Hooker v. Amer. Airlines, 302 F.3d 1091 1092

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

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appeal to be frivolous).

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As noted above, Plaintiff was granted multiple opportunities to file an opposition to

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Defendants’ motion for summary judgment in compliance with the Federal and Local Rules.

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Plaintiff failed to do so. Plaintiff’s only justification for this failure is that he received help from

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a jailhouse lawyer who did not follow through on his promises. However, as explained in the

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Court’s order denying Plaintiff’s motion for reconsideration, his reliance upon jailhouse lawyers

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did not constitute “circumstances beyond his control” such that Plaintiff is entitled to relief from

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judgment. See Latshaw, 452 F.3d at 1103; see also Tacho v. Martinez, 862 F.2d 1376, 1381 (9th

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Cir. 1988) (habeas corpus petitioner’s reliance upon jailhouse lawyers did not constitute cause to

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excuse a procedural default). Despite the failure of Plaintiff or his jailhouse lawyer to file a

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proper opposition to Defendant’s motion for summary judgment, Plaintiff is now appealing

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dismissal of this action.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. The appeal is declared frivolous and not taken in good faith;

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2. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma pauperis

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in Appeal No. 18-16707, filed September 6, 2018;
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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:

/s/ Barbara

October 5, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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