Huang v. Bell et al

Filing 28

ORDER DENYING 22 , 23 , 27 MOTIONS FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS AND FOR APPOINTMENT OF APPELLATE COUNSEL; AND STAYING ACTION PENDING DISPOSITION OF APPEAL. Signed by Judge Jeremy Fogel on 7/15/2010. (jflc2, COURT STAFF) (Filed on 7/15/2010)

Huang v. Bell et al

Doc. 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1

**E-Filed 7/15/2010**

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

YONG TAN HUANG, Plaintiff, v. TIM BELL, et al., Defendants.

Case Number C 10-1640 JF (PVT) ORDER1 DENYING MOTIONS FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS AND FOR APPOINTMENT OF APPELLATE COUNSEL; AND STAYING ACTION PENDING DISPOSITION OF APPEAL

On April 16, 2010, Plaintiff filed a Notice of Removal, apparently purporting to remove the instant action from the Santa Clara Superior Court. The complaint in the instant action alleges that Plaintiff was injured while constructing a deck on the Bells' property. Plaintiff sues the Bells and two state court judges; the claims against the Bells appear to be for negligence, while the claims against the judges appear to be for misconduct in the litigation of the state court action. Plaintiff also filed an application to proceed in forma pauperis and two motions seeking recusal of the undersigned on the ground of bias. On May 26, 2010, the Court issued an order denying Plaintiff's application to proceed in

This disposition is not designated for publication in the official reports.

C a s e No. C 10-1640 JF (PVT) O R D E R DENYING MOTIONS FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS ETC. (JFLC2)

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

forma pauperis and motions for recusal. The order advised Plaintiff that if he did not pay the filing fee within thirty days, the action would be dismissed without prejudice. On June 7, 2010, Plaintiff filed a notice of interlocutory appeal with respect to the May 26 order.2 On June 23, 2010, Plaintiff filed motions for leave to proceed on appeal in forma pauperis and for appointment of appellate counsel. On July 7, 2010 Plaintiff filed a second motion to proceed in appeal in forma pauperis. Plaintiff's motions are DENIED. Plaintiff has failed to present any facts demonstrating that the Court's May 26 order was erroneous or that there is any possibility that he could state a cognizable claim against these defendants. "Absent a stay, an appeal seeking review of collateral orders does not deprive the trial court of jurisdiction over other proceedings in the case, and an appeal of an interlocutory order does not ordinarily deprive the district court of jurisdiction except with regard to the matters that are the subject of the appeal." Britton v. Co-op Banking Group, 916 F.2d 1405, 1412 (9th Cir. 1990). Ordinarily, the Court would dismiss the action at this time for failure to pay the filing fee. However, because the requirement that Plaintiff pay the filing fee arises out of the denial of Plaintiff's request to proceed in forma pauperis, the Court instead will STAY the instant action pending disposition of Plaintiff's appeal. Plaintiff is advised that he may file applications for in forma pauperis status and for appointment of counsel in the Court of Appeals.

DATED: July 15, 2010 __________________________________ JEREMY FOGEL United States District Judge

While not all aspects of the Court's May 26 order are appealable, a denial of a motion to proceed in forma pauperis is an appealable order. Roberts v. District Court, 339 U.S. 844, 845 (1950). 2
C a se No. C 10-1640 JF (PVT) O R D E R DENYING MOTIONS FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS ETC. (JFLC2)

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Copies of Order served on:

Yong Tan Huang 345 N. 5th Street San Jose, CA 95112 Hugh Francis Lennon [e-mail], [e-mail]

3
C a se No. C 10-1640 JF (PVT) O R D E R DENYING MOTIONS FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS ETC. (JFLC2)