Buesgens et al v. Hart et al

Filing 41

ORDER DENYING PLAINTIFF'S MOTION TO FILE APPEAL IN FORMA PAUPERIS. Signed by Judge Maxine M. Chesney on January 27, 2009. (mmclc1, COURT STAFF) (Filed on 1/27/2009)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On December 22, 2008, plaintiff filed the instant complaint and an application to proceed in forma pauperis. On December 30, 2008, the Court denied plaintiff's application to proceed in forma pauperis, and, on January 2, 2009, plaintiff paid the filing fee. On January 16, 2009, plaintiff filed a notice of appeal from the Court's December 30, 2008 order. Now before the Court is plaintiff's "Motion to File Appeal In Forma Pauperis," filed January 22, 2009. A party who seeks to proceed in forma pauperis on appeal must, inter alia, file an affidavit in which he "states the issues that the party intends to present on appeal." See Fed. R. App. Proc. 24(a)(1)(C). Here, plaintiff has submitted an affidavit in which he describes the issues he intends to present on appeal, in full, as follows: "Denial of informa [sic] pauperis and appointment of counsel in civil Number 3:08CV05710-MMC U.S. District Court for the Northern District of California, San Francisco Division." Such conclusory v. BEVERLY HART, et al., Defendants / MICHAEL L. BUESGENS, Plaintiff, United States District Court No. C-08-5710 MMC (Appeal No. 09-15131) ORDER DENYING PLAINTIFF'S MOTION TO FILE APPEAL IN FORMA PAUPERIS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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assertion does not identify any issue plaintiff intends to raise on appeal.1 In an unverified attachment to the instant motion, plaintiff states, in a possible attempt to identify an issue to be raised on appeal, that his "monthly expenses for medical care, legal costs, and living costs exceed his only source of income, disability retirement $1,393.00 per month." Plaintiff failed, however, to make any such assertion in the application to proceed in forma pauperis filed December 22, 2008.2 Consequently, because such contention was not made in this Court, plaintiff cannot contend on appeal that the Court erred by failing to address it. Accordingly, because plaintiff has failed to identify any issue he can raise on appeal, the application to proceed in forma pauperis on appeal is hereby DENIED. Plaintiff is hereby informed he may file a motion to proceed in forma pauperis in the Ninth Circuit Court of Appeals. See Fed. R. App. Proc. 24(a)(5). The Clerk of the Court is directed to send a copy of this order to the Ninth Circuit Court of Appeals. IT IS SO ORDERED.

Dated: January 27, 2009

MAXINE M. CHESNEY United States District Judge

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Moreover, the Court has not denied any motion for appointment of counsel.

In the application denied by this Court, plaintiff stated his monthly income was $1393, his monthly expenses were $1275, he had $14,000 in a retirement account, and he had $3000 cash in the bank. Plaintiff also stated he had debts in the total amount of $55,000, but did not indicate he was making, or was required to make, any monthly payments on said debts. Plaintiff further stated that he sought herein to raise claims he had previously raised in a state court in Texas. 2