Bell v. Dileo

Full title: HORACE BELL, Plaintiff, v. LARRY DILEO, et al., Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Aug 12, 2011

CASE NO: 1:10-cv-02364-GBC (PC) (E.D. Cal. Aug. 12, 2011)

Opinion

CASE NO: 1:10-cv-02364-GBC (PC)

08-12-2011

HORACE BELL, Plaintiff, v. LARRY DILEO, et al., Defendants.

Oliver W. Wanger

ORDER FINDING THAT PLAINTIFF IS NOT ENTITLED TO PROCEED IN FORMA PAUPERIS ON APPEAL FILED AUGUST 10, 2011 (Doc. 22)

ORDER DIRECTING CLERK'S OFFICE TO SERVE COPY OF ORDER ON NINTH CIRCUIT

Horace Bell ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. On August 3, 2011, the Court adopted Findings and Recommendations which recommended revoking Plaintiff's in forma pauperis status and dismissing Plaintiff's action without prejudice due to a rule 11(b)(3) violation and failure to exhaust administrative remedies. (Doc. 20). On August 10, 2011, Plaintiff filed a notice of appeal. (Doc. 22). Plaintiff has already twice appealed the same issues which resulted in the Ninth Circuit opinion, In re: Horace Andrew Bell, No. 11-80037.

Pursuant to the Federal Rules of Appellate Procedure,

A party who was permitted to proceed in forma pauperis in the district-court action . . . may proceed on appeal in forma pauperis without further authorization, unless: (A) the district court - before or after the notice of appeal is filed - certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding;
or
(B) a statute provides otherwise.

Fed. R. App. P. 24(a)(3).

The district clerk must immediately notify the parties and the court of appeals when the district court does any of the following:
(A) denies a motion to proceed on appeal in forma pauperis;
(B) certifies that the appeal is not taken in good faith; or
(C) finds that the party is not otherwise entitled to proceed in forma pauperis.

Fed. R. App. P. 24(a)(4).

Because Plaintiff is proceeding in forma pauperis in this action, Plaintiff is entitled to proceed in forma pauperis on appeal unless the Court finds his appeal is not taken in good faith or finds that he is not otherwise entitled to proceed in forma pauperis. Since In In re: Horace Andrew Bell, the Ninth Circuit concluded that the two appeals were so "insubstantial as to not warrant further review," the Court finds that Plaintiff's pursuit of this instant appeal to be frivolous since this case was dismissed on the same grounds as the two in In re: Horace Andrew Bell. In re: Horace Andrew Bell, No. 11-80037.

Based on the foregoing, it is HEREBY ORDERED that: Plaintiff's appeal is frivolous and not taken in good faith. 28 U.S.C. § 1915(a). The Clerk's Office shall serve a copy of this order on the Ninth Circuit.

IT IS SO ORDERED.

Oliver W. Wanger

UNITED STATES DISTRICT JUDGE