Zochlinski v. Regents of the University of California, et al

Filing 59

ORDER signed by Judge Kimberly J. Mueller on 2/16/12 ORDERING that Plaintiff's request for additional time to file a transcript designation 56 is denied as moot; and Plaintiff's request to proceed in forma pauperis on appeal 55 is denied. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOWARD ALAN ZOCHLINSKI,
Plaintiff

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vs.

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No. CIV S-10-1824 KJM JFM

REGENTS OF THE UNIVERSITY
OF CALIFORNIA, et al.,

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Defendants.

ORDER
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Plaintiff, who is proceeding pro se in a civil rights action, 42 U.S.C. § 1983, has

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timely filed a notice of appeal from the order dated December 9, 2011, denying plaintiff’s

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motion for reconsideration. FED. R. CIV. P. 59, 60.
Rule 24(a)(1) of the Federal Rules of Appellate Procedure provides that a party to

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a district court action who desires to proceed in forma pauperis on appeal must file a motion in

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the district court which:

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(A) shows in the detail prescribed by Form 4 of the Appendix of

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Forms the party’s inability to pay or to give security for fees and

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costs;

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(B) claims an entitlement to redress; and

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(C) states the issues that the party intends to present on appeal.

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FED. R. APP. P. 24(a)(1). Plaintiff has demonstrated his inability to pay but has not otherwise

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complied with Rule (24)(a)(1) .

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In addition, under 28 U.S.C. § 1915(a)(3) a court may deny a request to proceed

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

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faith 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, 369

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U.S. 438, 445 (1962)). An action is “frivolous” for purposes of section 1915 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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Plaintiff did not timely appeal the final judgment in this case and did not file his

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motion in sufficient time to toll the running of the time to appeal. FED. R. APP. P. 4(a)(4).

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Accordingly, plaintiff can appeal only the denial of the motion he denominated as a motion for a

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new trial. Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir.1995); Floyd v. Lewis, 929 F.2d 1390,

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1400 (9th Cir. 1991). The court denied plaintiff’s motion because it merely repackaged

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arguments he presented to the magistrate judge, unsuccessfully. His appeal of this denial is

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frivolous, lacking an arguable basis in law and fact.
In addition to the request to proceed in forma pauperis, plaintiff has filed a

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request for an extension of time to file his transcript designation and has filed such a designation.

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In light of the fact that plaintiff has filed his designation, the request is moot.

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IT IS THEREFORE ORDERED that:

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1. Plaintiff’s request for additional time to file a transcript designation (ECF No.

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56) is denied as moot; and

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2. Plaintiff’s request to proceed in forma pauperis on appeal (ECF No. 55) is

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denied.

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DATED: February 16, 2012.

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UNITED STATES DISTRICT JUDGE

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