Opinion
No. C 12-05225 EJD (PR)
03-26-2013
KENNETH LEE TAYLOR, Plaintiff, v. MATTHEW CATE, et al., Defendants.
ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS
This is a civil rights case filed pro se by a state prisoner that was closed on February 15, 2013. Plaintiff then filed an appeal with the Ninth Circuit. The Ninth Circuit has referred the case back to this court for the limited purpose of determining whether plaintiff's in forma pauperis status should continue or whether the appeal is frivolous or taken in bad faith.
An indigent party who cannot afford the expense of pursuing an appeal may file a motion for leave to proceed in forma pauperis. Fed. R. App. P. 24(a); 28 U.S.C. § 1915(a)(1). Pursuant to Federal Rule of Appellate Procedure 24(a), "a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court." The party must attach an affidavit that (1) shows in detail "the party's inability to pay or give security for fees and costs," (2) "claims an entitlement to redress," and (3) "states the issues that the party intends to present on appeal." Fed. R. App. P. 24(a)(1). However, even if a party provides proof of indigence, "an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). An appeal is in "good faith" where it seeks review of any issue that is "non-frivolous." Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). An issue is "frivolous" if it has "no arguable basis in fact or law." See O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990).
Plaintiff's amended complaint was dismissed without leave to amend as he had failed to state a claim for denial of access to the courts. Plaintiff stated that in his habeas case, Taylor v. Ayers, No. C 07-04147 MMC, prison staff hindered his ability to litigate the case as he was only provided one and a half hours in the law library to file a Certificate of Appealability ("COA"), which was insufficient and as a result the COA was denied. Court records indicated that Plaintiff had already been provided an extension and the COA Plaintiff filed was 61 pages with another 131 pages of exhibits and was quite extensive. (Docket No. 32, Taylor v. Ayers, No. C 07-04147 MMC.) The Court found Petitioner's arguments to be unpersuasive and denied the COA. (Docket No. 36, Taylor v. Ayers, No. C 07-04147 MMC.) The Ninth Circuit also denied the request for a COA. (Docket No. 49, Taylor v. Ayers, No. C 07-04147 MMC.) Plaintiff also argued he was not allowed a copy of all 192 pages of the COA for his own records, only the first 100 pages. Plaintiff stated he needed a complete copy for his next parole board hearing.
This court dismissed the action as Plaintiff's allegations did not state a claim under Lewis v. Casey, 518 U.S. 343, 350 (1996), as Plaintiff was able to file a substantial COA that was reviewed by the court and as a result there was no injury. Nor was it clear why only being provided the first 100 pages of the COA was insufficient for his next parole hearing. As Plaintiff's action was meritless, his appeal of this court's dismissal is frivolous and taken in bad faith and his in forma pauperis status is REVOKED. The Clerk shall forward this Order to the Ninth Circuit in case No. 13-15494.
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EDWARD J. DAVILA
United States District Judge
KENNETH LEE TAYLOR, Plaintiff, v. MATTHEW CATE, et al., Defendants.
No. C 12-05225 EJD (PR)
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on 3/26/2013, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s)hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) inter-office delivery receptacle located in the Clerk's office. Kenneth Lee Taylor
J-89634
SHU D9-12 / Low
Pelican Bay State Prison
PO Box 7500
Crescent City, CA 95532
Richard W. Wieking, Clerk
By: Elizabeth Garcia, Deputy Clerk