Austin v. Van Winkle et al

Filing 15

ORDER DENYING MOTION TO EXTEND TIME TO APPEAL AND REVOKING IN FORMA PAUPERIS STATUS 13 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 2/24/12. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Gerald Lewis Austin served by first class mail at the address of record on February 24, 2012. The Ninth Circuit Court of Appeals received the order electronically.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GERALD LEWIS AUSTIN,
#A1076082,

)
)
)
Plaintiff,
)
)
vs.
)
)
CORR’L OFFICER VAN WINLKE, et )
al.,
)
)
)
Defendants.
_____________________________ )

CIV. NO. 11-00691 SOM/BMK
ORDER DENYING MOTION TO
EXTEND TIME TO APPEAL AND
REVOKING IN FORMA PAUPERIS
STATUS

ORDER DENYING MOTION TO EXTEND TIME TO APPEAL
AND REVOKING IN FORMA PAUPERIS STATUS
On November 29, 2011, the court dismissed pro se
plaintiff Gerald Lewis Austin’s prisoner civil rights complaint
for failure to state a claim.

See ECF #5.

Plaintiff was granted

leave to amend to cure the complaint’s pleading deficiencies.
Id.

Plaintiff was proceeding in forma pauperis.

See ECF #4.

On

December 12, 2011, Plaintiff submitted a first amended complaint.
ECF #6.
Plaintiff’s amended complaint was virtually identical
to the original Complaint, and did not address any of the court’s
noted deficiencies.

See id.

On December 20, 2011, the court

dismissed the first amended complaint and action for Plaintiff’s
failure to state a claim or cure the original complaint’s
deficiencies.

ECF #8.

Judgment was entered that day.

ECF #9.

On February 15, 2012, Plaintiff submitted a letter,
dated February 13, 2012, to the Clerk of Court.1

Plaintiff

explains that he intends to file a notice of appeal in this
action in approximately one week and seeks an extension of time
to do so, so that he can make copies of his documents and
resubmit an in forma pauperis application.

See ECF #10.

The

court construes Plaintiff’s letter as a motion to extend time to
appeal.

On February 21, 2012, Plaintiff submitted a new in forma

pauperis application.

See ECF #13.

I. Plaintiff’s Motion for Extension of Time
The deadline for filing a notice of appeal in this
action was January 19, 2012.

See Fed. R. App. 4(a)(1).

That

date can be extended until February 18, 2012, under Rule 4(a)(5),
if the court construes Plaintiff’s February 15, 2012 letter as a
motion for an extension of time, and if Plaintiff’s motion shows
excusable neglect or good cause.

See Fed. R. App. P. 4(a)(5).

Plaintiff, however, provides no adequate explanation
showing good cause or excusable neglect for extending the time to
appeal.

See Fed. R. App. 4(a)(5)(A)(ii).

To the contrary,

Plaintiff’s recent activity in this court suggests otherwise.
Plaintiff has filed numerous actions, motions, amended pleadings,
1

In this letter, Plaintiff also referenced two other cases
in which he states he is intending to seek an extension of time
to appeal. See Austin v. Lau, 1:11-cv-00672 SOM; Austin v.
Padilla, 1:11-cv-00693 DAE. The letter has been filed in all
three of Plaintiff’s actions.
2

letters, exhibits, and appeals in his recently filed cases, yet
provides no explanation or justification to extend the time to
appeal in this case.2

Plaintiff does not explain why he needed

to make copies of his documents to perfect his appeal, or why he
was unable to do so.

Plaintiff is not required to file a new in

forma pauperis application prior to filing his notice of appeal.
Further, Plaintiff does not explain the basis for his appeal in
this action or otherwise substantiate good cause for extending
the time to appeal.

Plaintiff’s motion to extend the time to

appeal is DENIED.
II.

Plaintiff’s In Forma Pauperis Status

In light of Plaintiff’s recent litigation history, and
the insubstantial nature of his claims in this case, combined
with his failure to provide any basis for this appeal, the court
finds that any appeal here is frivolous and would not be taken in
good faith.

See 28 U.S.C. § 1915(a)(3).

As such, Plaintiff’s in

forma pauperis status in this action is REVOKED.

To the extent

Plaintiff’s recent IFP application is intended as a request for
IFP status on appeal, it is DENIED without prejudice to

2

Plaintiff has recently filed eight civil actions, most of
which were dismissed as frivolous or for failure to state a
claim. See Austin v. Kaawa, 1:10-cv-00693-SOM; Austin v. Papa
John's Pizza, 1:11-cv-00683-DAE-RLP; Austin v. Stevens,
1:11-cv-00690 SOM, Austin v. Van Winkle, 1:11-cv-00691 SOM,
Austin v. Tyler, 1:11-cv-00692 JMS, Austin v. Padilla,
1:11-cv-00693 DAE, Austin v. Momoa, 1:11-cv-00707 DAE, Austin v.
Mail Room, 1:11-cv-00708 JMS.
3

Plaintiff’s seeking such status with the appellate court if that
court rules that Plaintiff may appeal.
III. Conclusion
Plaintiff’s February 15, 2012 letter is construed as a
Motion for Extension of Time to Appeal and is DENIED.

Because

this court finds that any appeal in this action would be
frivolous and not taken in good faith, Plaintiff’s in forma
pauperis status is REVOKED.

In forma pauperis on appeal is

DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 24, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Austin v. corr’l Officer Van Winkle, Civ. No. 11-00691 SOM; ORDER DENYING MOTION TO
EXTEND TIME TO APPEAL AND REVOKING IN FORMA PAUPERIS STATUS; psas\Non-dsp Ords\dmp
2012 Austin 11-691 som (m.ext time to appeal)

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