Evans v. Supreme Court of California et al

Filing 16

ORDER re 13 Notice of Appeal filed by James Evans, Jr.. Signed by Judge ARMSTRONG on 5/13/11. (lrc, COURT STAFF) (Filed on 5/16/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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v.
CALIFORNIA SUPREME COURT CHIEF
JUSTICE GEORGE, et al.,
Defendants.
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United States District Court
For the Northern District of California

ORDER DENYING PLAINTIFF LEAVE
TO CONTINUE IN FORMA PAUPERIS
STATUS ON APPEAL

Plaintiff,

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No. C 10-4778 SBA (PR)

JAMES EVANS, JR.,

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Plaintiff, a California prisoner proceeding pro se, filed a civil rights complaint under 42

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U.S.C. 1983 against California Supreme Court Chief Justice George, Justices Kennard, Baxter,

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Werdegar, Chin, Moreno and Corrigan, as well as Chief Clerk Ohlrich. Plaintiff claimed that

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Defendants, who are mostly state supreme court justices, violated his constitutional rights when they

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issued an August 27, 2008 decision. Plaintiff sought money damages and to be removed from

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"unlawful CDC&R custody/jurisdiction." (Compl. at 4.)

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In an Order dated April 20, 2011, the Court dismissed the instant case for failure to state a

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cognizable claim under section 1983. The remaining claim for relief in the form of his release from

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custody was dismissed without prejudice to raising it in a petition for writ of habeas corpus.

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Plaintiff had been granted leave to proceed in forma pauperis (IFP) in a separate Order.

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On May 2, 2011, Plaintiff filed a notice of appeal.

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In a Referral Notice dated May 12, 2011, the Ninth Circuit Court of Appeals referred this

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case to the district court "for the limited purpose of determining whether in forma pauperis status

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should continue for this appeal whether the appeal is frivolous or taken in bad faith." (Ninth Circuit

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May 12, 2011 Referral Notice at 1.)

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A prisoner must seek leave to proceed IFP on appeal in the district court. See Fed. R. App.

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P. 24(a). As in the district court, a prisoner proceeding IFP on appeal will be required to pay the full

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filing fee. See 28 U.S.C. § 1915(b)(1).

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If the district court finds that the appeal is frivolous and not taken in good faith and revokes

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IFP status, or if the prisoner never had such status and moves in the Ninth Circuit to proceed IFP, the

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Ninth Circuit will conduct an independent review of the record to determine whether the appeal is

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frivolous. The Ninth Circuit will decide whether to grant the prisoner IFP status. If IFP status is

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denied by the Ninth Circuit, the prisoner will nonetheless be directed to pay the entire filing fee and

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to show cause why the appeal should not be dismissed as frivolous. See id. § 1915(e)(2).

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Plaintiff is appealing this Court's Order which dismissed the complaint for failure to state a

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claim for relief. As such, Plaintiff's IFP status should not continue on appeal because this Court

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finds that the appeal is not taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge

United States District Court
For the Northern District of California

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v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977)

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(indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous).

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The Clerk of the Court shall send a copy of this Order to the parties and to the Ninth Circuit.

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IT IS SO ORDERED.

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DATED:

5/13/11

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United States District Court
For the Northern District of California

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G:\PRO-SE\SBA\CR.10\Evans4778.denyAFP.wpd
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_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES EVANS JR.,

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Plaintiff,

CERTIFICATE OF SERVICE

v.

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CALIFORNIA SUPREME COURT et al,

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United States District Court
For the Northern District of California

Case Number: CV10-04778 SBA

Defendant.

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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.
That on May 16, 2011, 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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James Evans F-06497
California State Prison - Corcoran
P.O. Box 8800
Corcoran, CA 93212

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Dated: May 16, 2011

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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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