Henderson v. U.S. District Court for the Northern District of California

Filing 15

ORDER by Judge Jacqueline Scott Corley denying 13 Motion to Appoint Counsel ; denying 14 Motion for Recusal.. (lrcS, COURT STAFF) (Filed on 2/10/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PHILIP W. HENDERSON,
Plaintiff,

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United States District Court
Northern District of California

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v.
U.S. DISTRICT COURT FOR THE
NORTHERN DISTRICT OF
CALIFORNIA,

Case No.16-cv-05058-JSC

ORDER DENYING
APPOINTMENT OF COUNSEL
AND CHALLENGING
CERTIFICATION OF BAD FAITH
Re: Dkt. Nos. 13, 14

Defendant.
Plaintiff, a California prisoner, filed this pro se civil action against a federal judge who

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previously denied his petition for a writ of habeas corpus. The complaint was dismissed for

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failure to state a cognizable claim for relief, and the Court certified that any appeal would not be

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taken in good faith for purposes of proceeding in forma pauperis on appeal. See 28 U.S.C. §

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1915(a)(3); Fed. R. App. 24(a). The Clerk entered judgment and closed the file. Thereafter,

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Plaintiff filed a motion for appointment of counsel and a motion “challenging improper

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certification of bad faith” and “requesting recusal.”

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This Court is not the proper venue for challenging this Court’s determination of bad faith

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under Section 1915(a)(3). Plaintiff may obtain review of that decision by filing a motion for leave

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to proceed in forma pauperis on appeal in the United States Court of Appeals. O’Neal v. Price,

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531 F.3d 1146, 1150 (9th Cir. 2008) (“If upon review of the record [the Ninth Circuit]

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determine[s] that the district court erred in making a §1915(a)(3) certification, [the Ninth Circuit]

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may vacate the district court’s certification, grant the prisoner leave to take an appeal in forma

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pauperis, and construe the prisoner’s motion as a timely notice of appeal.”) (citing 28 U.S.C. §

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2106). As there is no matter properly pending in this Court in this case, the requests for

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appointment of counsel and recusal are DENIED as moot.
IT IS SO ORDERED.

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Dated:

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PHILIP W. HENDERSON,

Case No. 16-cv-05058-JSC

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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U.S. DISTRICT COURT FOR THE
NORTHERN DISTRICT OF
CALIFORNIA,
Defendant.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on February 10, 2017, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Philip W. Henderson
D-36152
Mule Creek State Prison 14-223L
P.O. Box 409099
Ione, CA 95640-9000

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Dated: February 10, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JACQUELINE SCOTT CORLEY
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