Lorenzo v. Figueroa et al

Filing 11

ORDER denying 8 Motion for Leave to Appeal in forma pauperis. Because Petitioner's argument has no arguable basis in law, his IFP appeal is frivolous. Therefore, the Court certifies that Petitioner's IFP appeal would not be taken in &quo t;good faith" pursuant to 28 U.S.C. § 1915(a)(3). Accordingly, Petitioner's motion is denied. Signed by Judge Dana M. Sabraw on 9/5/2017. (USCA Case Number 17-56314. Order electronically transmitted to the US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ELISIO ATENIA LORENZO, 11 Petitioner, 12 v. 13 Case No. 16-cv-1719 DMS (BGS) ORDER DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS MR. FIGUEROA, Warden, and ESTRADA, Detention Officer, 14 Respondents. 15 16 17 Petitioner Elisio Atenia Lorenzo has filed a motion to proceed in forma 18 pauperis (“IFP”) in his appeal of this Court’s decision denying his petition for writ 19 of habeas corpus under 28 U.S.C. § 2241. 1 For the reasons set out below, the motion 20 is denied. 21 An indigent party who cannot afford the expense of pursuing an appeal may 22 file a motion for leave to proceed IFP. See 28 U.S.C. § 1915(a)(1); Fed. R. App. P. 23 24(a)(1). Pursuant to Federal Rule of Appellate Procedure 24(a), a party to a district 24 court action who seeks to appeal IFP must first file a motion with the district court 25 which: “(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the 26 27 1 28 On August 28, 2017, Petitioner filed a financial affidavit with a notice of appeal. The Court construes the financial affidavit as a motion to proceed IFP. –1– 16-cv-1719 DMS (BGS) 1 party’s inability to pay or to give security for fees and costs; 2 (B) claims an 2 entitlement to redress, and (C) states the issues that the party intends to present on 3 appeal.” Fed. R. App. P. 24(a)(1). Additionally, if a party seeking to proceed IFP 4 is a prisoner as defined in 28 U.S.C. § 1915(h), the party “shall submit a certified 5 copy of the trust fund account statement (or institutional equivalent) for the prisoner 6 for the 6-month period immediately preceding the filing of the complaint or notice 7 of appeal, obtained from the appropriate official of each prison at which the prisoner 8 is or was confined.” 28 U.S.C. § 1915(a)(2). However, even if a party provides 9 proof of indigence, “[a]n appeal may not be taken in forma pauperis if the trial court 10 certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). A 11 party satisfies the “good faith” requirement if he or she seeks review of any issue 12 that is “nonfrivolous.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 13 2002). An issue is frivolous if it has “no arguable basis in fact or law.” O’Loughlin 14 v. Doe, 920 F.2d 614, 617 (9th Cir. 1990). 15 Petitioner is a prisoner under 28 U.S.C. § 1915(h), which includes any person 16 detained in any facility for violations of the terms and conditions of probation. While 17 Petitioner has submitted a financial affidavit, he has not included a certified copy of 18 his trust fund account statements for the past six months. Because Petitioner has not 19 filed sufficient material to enable the Court to determine Petitioner’s eligibility for 20 proceeding IFP, the motion is denied on this basis. 21 Even assuming Petitioner has shown his eligibility to proceed IFP, he has 22 failed to demonstrate that he intends to present any non-frivolous argument on 23 appeal. Plaintiff’s sole argument on appeal is that Preap v. Johnson, 303 F.R.D. 24 566, affirmed, 831 F.3d 1193 (9th Cir. 2016) mandates his release. However, as 25 explained in the previous order, Preap is inapplicable to the present action. Because 26 27 28 2 Form 4 of the Appendix of Forms requires a prisoner to attach a certified prison trust account statement showing all receipts, expenditures and balances during the last six months. –2– 16-cv-1719 DMS (BGS) 1 Petitioner’s argument has no arguable basis in law, his IFP appeal is frivolous. 2 Therefore, the Court certifies that Petitioner’s IFP appeal would not be taken in 3 “good faith” pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 4 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) 5 (indigent appellant is permitted to proceed IFP on appeal only if appeal would not 6 be frivolous). Accordingly, Petitioner’s motion is denied. The Clerk shall close this 7 case. 8 9 IT IS SO ORDERED. Dated: September 5, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –3– 16-cv-1719 DMS (BGS)

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