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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 13-0248 WHA (PR)

WINIFRED JIAU,
For the Northern District of California

United States District Court

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ORDER REVOKING IN FORMA
PAUPERIS STATUS FOR APPEAL

Plaintiff,
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vs.
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KAIRE POOLE; RANDY TEWS,
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Defendant.
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Plaintiff, a federal prisoner incarcerated at the Federal Correctional Institute in Dublin,
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California, filed this civil rights case in which she complains that she was wrongfully expelled
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from the residential drug abuse treatment program. Because she stated in her complaint that the
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expulsion from the program “resulted [in] the plaintiff no longer [being] eligible for a 12-month
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early release,” the complaint was dismissed without prejudice to refiling in a habeas case
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because her claims implicate the duration of her confinement and success would entitle her to
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reinstatement in the program and earlier release. See Skinner v. Switzer, 131 S. Ct. 1289, 1293
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(2011). Plaintiff’s subsequent motions for reconsideration and relief from judgment were
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denied because she did not indicate in those motions that the expulsion from the drug treatment
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programs did not affect the duration of her confinement. She appealed both the judgment and
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the denial of her post-judgment motions. Our court of appeals has referred the case for a
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determination of whether in forma pauperis status should be revoked under 28 U.S.C.

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1915(a)(3) because the appeal is frivolous or taken in bad faith. The appeal is frivolous because

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it is clear from plaintiff’s papers that her placement in the program affect the duration of her

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confinement such that success on her claims would entitle her to earlier release, and therefore

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that the claims should be brought in a habeas petition not a civil rights complaint. Accordingly,

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in forma pauperis status is REVOKED.

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IT IS SO ORDERED.

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Dated: April

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, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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