Duran, et al v. King, et al

Filing 3238

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL by Magistrate Judge Kirtan Khalsa. Patricio David Ortegon's Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 3222) is denied. The Clerk is directed to notify the United States Court of Appeals for the Tenth Circuit of this denial. (kmt)

Case 1:77-cv-00721-KK-SCY Document 3238 Filed 05/21/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

DWIGHT DURAN et al.,
Plaintiffs,
vs.

Civ. No. 77-721 KK/SCY

MICHELLE LUJAN GRISHAM et al.,
Defendants.

ORDER DENYING APPLICATION TO PROCEED
IN FORMA PAUPERIS ON APPEAL
THIS MATTER is before the Court on Patricio David Ortegon’s Application to Proceed in
District Court Without Prepaying Fees or Costs (Doc. 3222) (“Application”), filed April 1, 2020,
and his [Response to] Order to Cure Deficiencies (Doc. 3237) (“Response”), filed May 18, 2020.
On March 6, 2020, Mr. Ortegon filed a Notice of Appeal (Doc. 3214) from the Court’s Order
Granting Final Approval of Second Revised Settlement Agreement (Doc. 3205), in which the
Court overruled Mr. Ortegon’s objections to the parties’ Second Revised Settlement Agreement.
Though filed as an application to proceed in forma pauperis “in District Court,” (Doc. 3222 at 1),
the Court construes Mr. Ortegon’s Application as seeking leave to proceed in forma pauperis in
the United States Court of Appeals for the Tenth Circuit. As explained below, the Court FINDS
that the Application is not well taken and should be DENIED.
Mr. Ortegon filed his Application pursuant to Federal Rule of Appellate Procedure 24. In
pertinent part, Rule 24 requires a party seeking leave to proceed in forma pauperis on appeal to
submit an affidavit that “states the issues that the party intends to present on appeal.” Fed. R. App.
P. 24(a)(1)(C). This statement allows the Court to determine, as it must, whether the appeal is
taken in good faith. See 28 U.S.C. § 1915(a)(3). In this regard, the burden is on the party seeking
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in forma pauperis status to show that he is raising reasoned and nonfrivolous issues on appeal.
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991); see Watkins v. Leyba, 543 F.3d
624, 627 (10th Cir. 2008) (to be allowed to proceed in forma pauperis on appeal, appellant must
present “a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on
appeal”).
Neither Mr. Ortegon’s Notice of Appeal nor his Application identifies any issue that he
intends to raise on appeal. (See Docs. 3214, 3222.) Moreover, his Response is similarly lacking,
even though the Court in its Order to Cure Deficiencies specifically informed Mr. Ortegon that his
Application was deficient because he had failed to “state the issue(s) that he intends to present on
appeal” and gave him 30 days to cure the deficiency. (Doc. 3223 at 2-3.) In short, Mr. Ortegon
has never informed the Court of the issues that he intends to raise on appeal, much less presented
a reasoned, nonfrivolous argument on the law and facts in support of any such issues. Watkins,
543 F.3d at 627; Fed. R. App. P. 24(a)(1)(C). As such, Mr. Ortegon’s Application fails to comply
with Rule 24 and does not allow the Court to ascertain whether his appeal is taken in good faith.
The Court must therefore deny his Application.
Pursuant to Federal Rule of Appellate Procedure 24(a)(4), the Court will direct the Clerk
to notify the appellate court of this Court’s denial of Mr. Ortegon’s Application. The Court hereby
advises Mr. Ortegon that he may file a motion for leave to proceed in forma pauperis on appeal in
the United States Court of Appeals for the Tenth Circuit within 30 days after service of this Order.
Fed. R. App. P. 24(a)(5).
IT IS THEREFORE ORDERED that Patricio David Ortegon’s Application to Proceed in
District Court Without Prepaying Fees or Costs (Doc. 3222) is DENIED. The Court DIRECTS the
Clerk to notify the United States Court of Appeals for the Tenth Circuit of this denial.

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IT IS SO ORDERED.

____________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent 

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