Howard v. Joseph et al

Filing 13

ORDER by Judge ARMSTRONG denying 11 Motion for Certificate of Appealability; denying 12 Motion for Certificate of Appealability (lrc, COURT STAFF) (Filed on 9/2/2010)

Howard v. Joseph et al

Doc. 13

1 2 3 4 5 6 HUGH JAMES HOWARD, 7 8 vs. Plaintiff, Case No: C 09-6020 SBA ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

9 IRWIN JOSEPH, CHERYL JARVI-JONES, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Court previously issued an Order dismissing the action, pursuant to the screening provisions of 28 U.S.C. § 1915(e)(2). (Docket 10.) Plaintiff has filed a request for a certificate of appealability. However, a certificate of appealability is required only in appeals taken in habeas cases. See 28 U.S.C. § 2253(c)(1). Since this case was brought as a civil rights action under 42 U.S.C. § 1983, and not as a habeas petition, no certificate of appealability is required for plaintiff to proceed with his appeal. The above notwithstanding, Plaintiff should be aware that the Court's prior dismissal of his action does not prevent him from pursuing his claims against Defendants in this Court. After filing his complaint and request to proceed in forma pauperis ("IFP"), Plaintiff tendered payment of the $350 filing fee. However, because Plaintiff commenced this case with an IFP request, the Defendants.

strictures of section 1915(e)(2) became germane. That statute provides that "the court shall dismiss the case" if it determines that (1) "the allegation of poverty is untrue" or (2) that the action is frivolous or malicious, fails to state claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Here, the Court determined that Plaintiff failed to state a claim and thus dismissed the action. The Court's ruling under section 1915(e)(2), however, does not prevent Plaintiff from presenting his claims in a separate complaint (opened as a new action) accompanied by a filing

Dockets.Justia.com

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fee. "Dismissals under the in forma pauperis statute are in a class of their own, acting not as dismissals on the merits but, rather, as denials of in forma pauperis status." Marts v. Hines, 117 F.3d 1504, 1505 (5th Cir. 1997) (en banc); see also Denton v. Hernandez, 504 U.S. 25, 34 (1992). Thus, a dismissal of a complaint filed in forma pauperis does not preclude "the subsequent filing of a fee-paid complaint making the same allegations." Marts, 117 F.3d at 1505. In this case, Plaintiff paid the $350 filing fee but did not withdraw his request to proceed IFP. As a result, the Court adjudicated his IFP request and dismissed the action accordingly. Although Plaintiff cannot pursue his claims under the above case number, he may nonetheless pursue his claims in a separate action by paying the filing fee and filing a new complaint, making the same allegations made in this case. Accordingly, the Court will order the Clerk to refund the filing fee paid by Plaintiff in this action.1
IT IS HEREBY ORDERED THAT Plaintiff's request for a certificate of appealability is DENIED. This Order terminates Docket Nos. 11 and 12. IT IS SO ORDERED. Dated: September 1, 2010 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

So that there is no ambiguity regarding the effect of the Court's prior dismissal on Plaintiff's ability to proceed with a paid Complaint, the Court will modify its Order of January 14, 2010 to reflect that that dismissal is "without prejudice" to the filing of a paid complaint.
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA HUGH JAMES HOWARD, Plaintiff, v. IRWIN JOSEPH et al, Defendant. / Case Number: CV09-06020 SBA CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on September 2, 2010, 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.

Hugh James Howard 17473 Middle Belt Road Romulus, MI 48174 Dated: September 2, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk