Kimble v. Montgomery

Filing 38

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 11/17/2017 GRANTING 37 Motion for Leave to Proceed on Appeal in Forma Pauperis. (Hunt, G)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
KELLY V. KIMBLE,
No. 2:15-cv-02488-JKS
Petitioner,
MEMORANDUM DECISION
vs.
WARREN L. MONTGOMERY, Warden,
Calipatria State Prison,
Respondent.

This Court denied Kelly V. Kimble, a California state prisoner proceeding pro se, habeas
relief and a certificate of appealability (“COA”) on September 12, 2017. Docket Nos. 32, 33.
Kelly filed a notice of appeal dated October 12, 2017, which was processed to the Ninth Circuit
Court of Appeals. Docket Nos. 34, 35. At Docket No. 37, Kelly now files a motion to proceed
in forma pauperis (“IFP”) on appeal.
Although Kimble’s appeal is currently pending before the Ninth Circuit, “[t]he decision
to allow an appeal to proceed in forma pauperis remains within the jurisdiction of the trial court
after the filing of an appeal.” Zambrano v. Gipson, No. LA CV 15-01794, 2016 WL 4040649, at
*1 (C.D. Cal. July 6, 2016) (citation omitted). A person may be granted permission to proceed
in forma pauperis if the person “submits an affidavit that includes a statement of all assets such
[person] possesses [and] that the person is unable to pay such fees or give security therefor.
Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the
person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez v. Smith, 203 F.3d 1122, 1129 (9th
Cir. 2000) (en banc) (stating that this provision applies to all actions filed in forma pauperis, not
just prisoner actions). “‘[T]he supporting affidavits [must] state the facts as to [the] affiant’s

poverty with some particularity, definiteness and certainty.’” United States v. McQuade, 647
F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 823, 725 (9th Cir.
1960)).
In support of his application, Kimble submits a California Superior Court Form FW-001
Request to Waive Court Fees. Although he did not fully complete the form application, Kimble
attaches to it a prison certificate and certified copy of his trust account statement which reflects
that he is within the parameters necessary to grant an IFP application due to lack of assets.
Accordingly, his application to proceed on appeal without the payment of a filing fee is granted.
The Court notes, however, that to proceed with his appeal, Kimble must apply for and
receive a COA from the Ninth Circuit Court of Appeals. FED. R. APP. P. 22(b); 9th Cir. R. 221(d). The Ninth Circuit may issue a COA only if Kimble makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). If Kimble fails to make such a showing, and the Ninth Circuit does not issue a COA
in his case, the grant of IFP status from this Court would be inconsequential.
IT IS THEREFORE ORDERED THAT the Motion for Leave to Proceed on Appeal in
Forma Pauperis is GRANTED.
Dated: November 17, 2017.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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