Opinion
1:20-cv-00376-DAD-HBK (PC)
08-06-2021
GUILLERMO TRUJILLO CRUZ, Plaintiff, v. FNU BALLESTEROS, ET. AL., Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO DEFER APPELLATE FILING FEES
(DOC. NO. 24)
On March 16, 2021, plaintiff Guillermo Trujillo Cruz's filed a notice of appeal (Doc. No. 21) from this court's judgment (Doc. No. 20) following dismissal of his case due to his failure to pay the required filing fee (Doc. No. 17) after his request to proceed in forma pauperis was denied (Doc. No. 10). On March 17, 2021, the Clerk of the Court sent plaintiff a bill for fees due in connection with his notice of appeal. (Doc. No. 22-2.) On March 26, 2021, plaintiff filed a document requesting deferral of his appellate fees. (Doc. No. 24.) Specifically, he requests that he be permitted to give the court an “I Owe You” for the fees due so that when he “obtains any relief” in this case the fees can be deducted from the proceeds of the judgment. (Id.) Because there is no statute or rule that would permit the court to accept such a future promise to pay, the court construes this filing as a request to proceed in forma pauperis on appeal under Federal Rule of Appellate Procedure 24(a) (permitting a motion in the district court by any person desiring to appeal in forma pauperis).
Appellate Rule 24(a) requires a person wishing to proceed in forma pauperis on appeal to submit an affidavit demonstrating his inability to pay, among other things. Here, no such affidavit has been presented and the court already has reviewed and rejected plaintiffs prior in forma pauperis application, finding that plaintiff had suffered three prior strike dismissals under 28 U.S.C. § 1915(g) and that none of the exceptions to the three-strikes rule applied to him. (Doc. No. 10.) The three-strikes rule applies with equal force to requests to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(g). Accordingly, plaintiff must pay the $505.00 appellate filing and docketing fees up front. See Bruce v. Samuels, 577 U.S. 82, 86 (2016) (noting that for most plaintiff with three qualifying strike dismissals, all future filing fees become payable up front). Failure to pay the filing fee may result in the dismissal of the appeal for failure to prosecute. See Ninth Cir. R. 42-1 (9th Cir. Dec. 1, 2020).
Accordingly, 1. Plaintiffs motion for leave to defer payment of the filing fees under 28 U.S.C. § 1915(a)(3), construed as a request to proceed in forma pauperis under Federal Rule of Appellate Procedure 24(a)(4) (Doc. No. 24) is DENIED;
2. The Clerk of the Court is directed to forward a copy of this order to the Clerk for the United States Court of Appeals for the Ninth Circuit.
IT IS SO ORDERED.