Jiau v. Poole et al

Filing 17

ORDER REVOKING IN FORMA PAUPERIS STATUS FOR APPEAL. Signed by Judge William Alsup on 4/8/13. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 4/9/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 No. C 13-0248 WHA (PR) WINIFRED JIAU, For the Northern District of California United States District Court 10 12 ORDER REVOKING IN FORMA PAUPERIS STATUS FOR APPEAL Plaintiff, 13 vs. 14 KAIRE POOLE; RANDY TEWS, 15 Defendant. 16 / 17 Plaintiff, a federal prisoner incarcerated at the Federal Correctional Institute in Dublin, 18 California, filed this civil rights case in which she complains that she was wrongfully expelled 19 from the residential drug abuse treatment program. Because she stated in her complaint that the 20 expulsion from the program “resulted [in] the plaintiff no longer [being] eligible for a 12-month 21 early release,” the complaint was dismissed without prejudice to refiling in a habeas case 22 because her claims implicate the duration of her confinement and success would entitle her to 23 reinstatement in the program and earlier release. See Skinner v. Switzer, 131 S. Ct. 1289, 1293 24 (2011). Plaintiff’s subsequent motions for reconsideration and relief from judgment were 25 denied because she did not indicate in those motions that the expulsion from the drug treatment 26 programs did not affect the duration of her confinement. She appealed both the judgment and 27 the denial of her post-judgment motions. Our court of appeals has referred the case for a 28 1 determination of whether in forma pauperis status should be revoked under 28 U.S.C. 2 1915(a)(3) because the appeal is frivolous or taken in bad faith. The appeal is frivolous because 3 it is clear from plaintiff’s papers that her placement in the program affect the duration of her 4 confinement such that success on her claims would entitle her to earlier release, and therefore 5 that the claims should be brought in a habeas petition not a civil rights complaint. Accordingly, 6 in forma pauperis status is REVOKED. 7 IT IS SO ORDERED. 8 9 Dated: April 8 , 2013. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 G:\PRO-SE\WHA\CR.13\JIAU0248.IFPAPP.wpd 23 24 25 26 27 28 2

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