Warner v. Cate et al

Filing 75

ORDER signed by Judge Kimberly J. Mueller on 11/20/2012 ORDERING that because plaintiff brings a frivolous appeal, his request to proceed in forma pauperis is DENIED. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,
Plaintiff-Appellant

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No. 2:09-cv-01568-KJM-EFB

vs.
M. MARTEL, Warden; et al.,
Defendant-Appellees.

ORDER
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Plaintiff, who is a prisoner proceeding pro se and in forma pauperis in a civil

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rights action under 42 U.S.C. § 1983, filed a timely notice of appeal on October 31, 2012 from

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this court’s September 26, 2012 order, which denied plaintiff’s motion for reconsideration.

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(ECF 71, 69); FED. R. APP. P. 4(a), 4(c). Plaintiff now requests to continue proceeding in forma

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pauperis on appeal.

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Under 28 U.S.C. § 1915(a)(3) a court may deny a request to proceed in forma

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pauperis on appeal if it determines that the appeal is not taken in good faith. The good faith

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requirement is satisfied if the plaintiff seeks review of any issue that is “not frivolous.”

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Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir.1977) (quoting Coppedge v. United States,

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369 U.S. 438, 445 (1962)). An action is “frivolous” for purposes of § 1915(a)(3) if it lacks any
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arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 327(1989); Franklin v.

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Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984).

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The court finds that plaintiff’s appeal is not in good faith. Defendants filed a

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motion for summary judgment on February 21, 2012. (ECF 53.) On March 19, 2012, the

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assigned magistrate judge informed plaintiff that if he was unable to respond to defendants’

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motion because of inadequate access to his property, he could request an extension of time.

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(ECF 69 at 2.) Plaintiff took no action. (Id.) On April 19, 2012, the magistrate judge warned

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plaintiff that failure to respond to defendants’ motion could result in dismissal of his claim. (Id.)

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The magistrate judge granted an extension of time. (Id.)

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On May 3, 2012, plaintiff filed a motion for a protective order requesting greater

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access to legal materials. (Id.) The magistrate judge denied this motion, noting among other

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things that the 140-page filing undermined plaintiff’s claim that his paper supply was limited to

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seven pages. (Id.) The magistrate judge again extended plaintiff’s time to respond. (Id. at 3-4.)

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Plaintiff moved for reconsideration of the denial of his protective order, yet still failed to respond

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to defendants’ motion for summary judgment. (Id.) On July 10, 2012, plaintiff still had not

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responded, nor requested an extension of time. (Id. at 3.) Accordingly, the magistrate judge

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dismissed plaintiff’s case for failure to prosecute and failure to comply with court orders. (ECF

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65.)

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This court affirmed the magistrate judge’s determination that plaintiff was

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capable of prosecuting this action but had simply failed to do so. (ECF 69 at 3.) Plaintiff was

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repeatedly given extensions of time, yet continually failed to abide by court deadlines. (Id.) The

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magistrate judge granted two extensions of time sua sponte. Plaintiff filed other motions while

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remaining silent for nearly five months as to defendants’ motion for summary judgment. This

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court adopted the magistrate judge’s findings and recommendations in full, dismissing plaintiff’s

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action. (Id. at 4.) This court also denied plaintiff’s request for reconsideration of the magistrate

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judge’s denial of his protective order as moot, as the underlying action had been dismissed. (Id.)
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Plaintiff cannot cure prior repeated failures to respond to defendants’ dispositive

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motion through an appeal when his motion for appeal presents no explanation or excuse for his

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failures to respond. Therefore, plaintiff’s appeal of this denial is frivolous, lacking an arguable

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basis in law and fact.

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Because plaintiff brings a frivolous appeal, his request to proceed in forma
pauperis (ECF 71) is DENIED.
IT IS SO ORDERED.
DATED: November 20, 2012.

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UNITED STATES DISTRICT JUDGE

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