Braley v. Wasco State Prison

Full title: THOMAS D. BRALEY, Plaintiff, v. WASCO STATE PRISON, et al., Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Sep 14, 2012

CASE NO. 1:07-cv-01423-AWI-BAM (E.D. Cal. Sep. 14, 2012)

Opinion

CASE NO. 1:07-cv-01423-AWI-BAM

09-14-2012

THOMAS D. BRALEY, Plaintiff, v. WASCO STATE PRISON, et al., Defendants.

NOTICE AND ORDER FINDING THAT

PLAINTIFF IS NOT ENTITLED TO PROCEED

IN FORMA PAUPERIS ON APPEAL FILED

AUGUST 15, 2012

(ECF Nos. 106, 112)

ORDER DIRECTING CLERK'S OFFICE TO

SERVE COPY OF ORDER ON NINTH CIRCUIT

Plaintiff Thomas D. Braley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 15, 2012, Plaintiff filed a notice of appeal. (ECF No. 106.) On September 9, 2012, the Ninth Circuit referred this matter to the district court for the limited purpose of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith. (ECF No. 112.)

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 was proceeding in forma pauperis in this action in the district court, Plaintiff is entitled to proceed in forma pauperis on appeal unless the Court makes a finding to the contrary. For the reason that follows, the Court finds that Plaintiff is not entitled to proceed in forma pauperis on his appeal filed August 15, 2012.

In forma pauperis proceedings are governed by 28 U.S.C. § 1915. Section 1915(g) provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." Plaintiff became subject to section 1915(g) on November 17, 2008, when the appeal of the dismissal of his third action as frivolous was dismissed for failure to prosecute.¹ Because Plaintiff is subject to section 1915(g) and does not meet the imminent danger exception, Plaintiff is not entitled to proceed in forma pauperis on appeal. Fed. R. App. P. 24(a)(4)(C).

1 The Court takes judicial notice of the following cases: 2:01-cv-03867-GAF-MC Braley v. P. Bledsoe, et al., (C.D.Cal.) (order adopting findings and recommendations issued October 31, 2001, and dismissing action for failure to state a claim); 2:03-cv-04583-UA-SH Braley v. Rafael Mejia, (C.D.Cal.) (dismissed as frivolous on July 16, 2003) appeal dismissed, No. 03-56491 (9th Cir. April 12, 2004); and 2:08-cv-03633-UA-SH Braley v. Court of Appeals, et al., (C.D.Cal.) (dismissed June 19, 2008, as frivolous) appeal dismissed, No. 08-56149 (9th Cir. Nov. 17, 2008). Plaintiff has also had 1:07-cv-01166-OWW-GSA Braley v. Los Angeles County Jail, (E.D.Cal.), dismissed on March 12, 2009, for failure to state a claim. However, it appears that the appeal was never received by the Ninth Circuit.

Based on the foregoing, it is HEREBY ORDERED that:

1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff is not entitled to proceed in forma pauperis on the appeal filed on August 15, 2012;
2. Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(C), this order serves as notice to the parties and the United States Court of Appeals for the Ninth Circuit of the finding that Plaintiff is not entitled to proceed in forma pauperis for this appeal;
and
3. The Clerk of the Court shall serve a copy of this order on Plaintiff and the United States Court of Appeals for the Ninth Circuit.

IT IS SO ORDERED.

________________________

CHIEF UNITED STATES DISTRICT JUDGE