Taylor et al v. Cate et al

Filing 19

ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS. As Plaintiffs action was meritless, his appeal of this court's dismissal is frivolous and taken in bad faith and his in forma pauperis status is REVOKED. The Clerk shall forward this Order to the Ninth Circuit in case No. 13-15494. Signed by Judge Edward J. Davila on 3/25/2013. (ecg, COURT STAFF) (Filed on 3/26/2013)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 KENNETH LEE TAYLOR, Plaintiff, 11 12 vs. 13 MATTHEW CATE, et al., 14 Defendants. 15 No. C 12-05225 EJD (PR) ) ) ) ) ) ) ) ) ) ) ) ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS 16 17 This is a civil rights case filed pro se by a state prisoner that was closed on 18 February 15, 2013. Plaintiff then filed an appeal with the Ninth Circuit. The Ninth 19 Circuit has referred the case back to this court for the limited purpose of determining 20 whether plaintiff's in forma pauperis status should continue or whether the appeal is 21 frivolous or taken in bad faith. 22 An indigent party who cannot afford the expense of pursuing an appeal may file a 23 motion for leave to proceed in forma pauperis. Fed. R. App. P. 24(a); 28 U.S.C. § 24 1915(a)(1). Pursuant to Federal Rule of Appellate Procedure 24(a), "a party to a 25 district-court action who desires to appeal in forma pauperis must file a motion in the 26 district court." The party must attach an affidavit that (1) shows in detail "the party's 27 inability to pay or give security for fees and costs," (2) "claims an entitlement to redress," 28 and (3) "states the issues that the party intends to present on appeal." Fed. R. App. P. Order Revoking Plaintiff’s In Forma Pauperis Status 05225Taylor_revk-ifp.wpd 1 1 24(a)(1). However, even if a party provides proof of indigence, "an appeal may not be 2 taken in forma pauperis if the trial court certifies in writing that it is not taken in good 3 faith." 28 U.S.C. § 1915(a)(3). An appeal is in "good faith" where it seeks review of any 4 issue that is "non-frivolous." Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 5 2002). An issue is "frivolous" if it has "no arguable basis in fact or law." See O'Loughlin 6 v. Doe, 920 F.2d 614, 617 (9th Cir. 1990). 7 Plaintiff’s amended complaint was dismissed without leave to amend as he had 8 failed to state a claim for denial of access to the courts. Plaintiff stated that in his habeas 9 case, Taylor v. Ayers, No. C 07-04147 MMC, prison staff hindered his ability to litigate 10 the case as he was only provided one and a half hours in the law library to file a 11 Certificate of Appealability (“COA”), which was insufficient and as a result the COA was 12 denied. Court records indicated that Plaintiff had already been provided an extension and 13 the COA Plaintiff filed was 61 pages with another 131 pages of exhibits and was quite 14 extensive. (Docket No. 32, Taylor v. Ayers, No. C 07-04147 MMC.) The Court found 15 Petitioner’s arguments to be unpersuasive and denied the COA. (Docket No. 36, Taylor 16 v. Ayers, No. C 07-04147 MMC.) The Ninth Circuit also denied the request for a COA. 17 (Docket No. 49, Taylor v. Ayers, No. C 07-04147 MMC.) Plaintiff also argued he was 18 not allowed a copy of all 192 pages of the COA for his own records, only the first 100 19 pages. Plaintiff stated he needed a complete copy for his next parole board hearing. 20 This court dismissed the action as Plaintiff’s allegations did not state a claim under 21 Lewis v. Casey, 518 U.S. 343, 350 (1996), as Plaintiff was able to file a substantial COA 22 that was reviewed by the court and as a result there was no injury. Nor was it clear why 23 only being provided the first 100 pages of the COA was insufficient for his next parole 24 hearing. As Plaintiff’s action was meritless, his appeal of this court's dismissal is 25 frivolous and taken in bad faith and his in forma pauperis status is REVOKED. The 26 Clerk shall forward this Order to the Ninth Circuit in case No. 13-15494. 27 DATED: 3/25/2013 EDWARD J. DAVILA United States District Judge 28 Order Revoking Plaintiff’s In Forma Pauperis Status 05225Taylor_revk-ifp.wpd 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA KENNETH LEE TAYLOR, ) ) ) ) ) ) ) ) ) ) ) Plaintiff, vs. MATTHEW CATE, et al., Defendants. No. C 12-05225 EJD (PR) 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. 3/26/2013 That on ______________________________, 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) inter-office delivery receptacle located in the Clerk's office. Kenneth Lee Taylor J-89634 SHU D9-12 / Low Pelican Bay State Prison PO Box 7500 Crescent City, CA 95532 3/26/2013 DATED: ________________________ Richard W. Wieking, Clerk /s/By: Elizabeth Garcia, Deputy Clerk

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