4 ANTHONY BAILEY, Case No. 2:22-cv-00381-CDS-NJK
5 Plaintiff, THREE STRIKES ORDER
v. 6
7 WARDEN BRIAN WILLIAMS, et al.,
8 Defendants.
9 11 Plaintiff Anthony Bailey is a prisoner proceeding pro se. On March 1, 2022, he submitted a 12 civil rights complaint pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis. 13 ECF Nos. 1, 1-1, 1-2. On at least four prior occasions while incarcerated, however, Plaintiff has 14 brought a court action or appeal that was dismissed on the grounds that it was frivolous. 15 Pursuant to 28 U.S.C. § 1915(g), “if [a] prisoner has, on 3 or more prior occasions, while 16 incarcerated or detained in any facility, brought an action or appeal in a court of the United 17 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 18 upon which relief may be granted,” he may not proceed in forma pauperis and, instead, must pay 19 the full $402.00 filing fee in advance unless he is “under imminent danger of serious physical 20 injury.” 28 U.S.C. § 1915(g). “Not all unsuccessful cases qualify as a strike under § 1915(g).” 21 Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). If an action or an appeal “was not dismissed on 22 one of the specific enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. 23 Harris, 935 F.3d 670, 673 (9th Cir. 2019). “[D]ocket records may be sufficient to show that a prior 24 dismissal satisfies at least one of the criteria under § 1915(g).” Andrews, 398 F.3d at 1121. “[T]he § 25 1915(g) calculation includes claims dismissed prior to the effective date of the statute”—April 26 26, 1996. Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997). 27 “Dismissed appeals that rely on district court findings that the appeal was not taken in 28 good faith are the equivalent of a finding of frivolity and therefore count as a strike under 2 (citing Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013)), adopted by 2020 WL 6196226 (E.D. Cal. 3 Oct. 22, 2020); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) (reaffirming 4 Knapp’s holding that “two dismissed appeals counted as strikes because they relied on district 5 court findings that the appeal [was] not taken in good faith, and lack of good faith in this 6 context has been held to be equivalent to a finding of frivolity” (internal quotation marks and 7 citation omitted)). Moreover, “an appeal may count as a strike pursuant to [§] 1915(g) when the 8 appellate court denies a prisoner [in forma pauperis] status on appeal on grounds of frivolousness 9 ‘even though [the appellate court] did not dismiss the appeal until later when the [appellant] 10 did not pay the filing fee.’” Gipbsin, 2020 WL 4364649, at *5 (quoting Richey v. Dahne, 807 F.3d 11 1202, 1208 (9th Cir. 2015)). 12 Plaintiff accumulated at least four strikes before bringing this action. On three separate 13 occasions, the Ninth Circuit adopted the district court’s finding that Plaintiff’s appeal was not 14 taken in good faith, denied him permission to proceed in forma pauperis, and then dismissed the 15 appeal for failure to prosecute when he failed to pay the filing fee. Bailey v. Gunderson et al., No. 95- 16 17213, ECF Nos. 9, 14 (9th Cir. 1996); Bailey v. Hunnell, No. 98-15212, ECF Nos. 15, 17 (9th Cir. 17 1998); Bailey v. Leonhardt et al., No. 02-16378, ECF Nos. 12, 15 (9th Cir. 2002).1 Each of these 18 dismissals qualifies as a strike. See, e.g., Blackwell v. Jenkins, No. 19-cv-00442, 2021 WL 825747, at *3 19 (E.D. Cal. Mar. 4, 2021) (“The district court certified that the appeal was not taken in good faith. 20 The appellate court reviewed the record and confirmed that plaintiff was not entitled to IFP 21 status. The appellate court later dismissed plaintiff’s appeal for failure to prosecute when he 22 failed to pay the filing fee. An appellate court’s reliance on a district court’s finding that an 23 appeal was not taken in good faith is equivalent to a finding of frivolity. Even if the dismissal of 24 an appeal occurs later for another reason, the rejection of IFP status because an appeal is 25 26 27
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4 ANTHONY BAILEY, Case No. 2:22-cv-00381-CDS-NJK
5 Plaintiff, THREE STRIKES ORDER
v. 6
7 WARDEN BRIAN WILLIAMS, et al.,
8 Defendants.
9 11 Plaintiff Anthony Bailey is a prisoner proceeding pro se. On March 1, 2022, he submitted a 12 civil rights complaint pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis. 13 ECF Nos. 1, 1-1, 1-2. On at least four prior occasions while incarcerated, however, Plaintiff has 14 brought a court action or appeal that was dismissed on the grounds that it was frivolous. 15 Pursuant to 28 U.S.C. § 1915(g), “if [a] prisoner has, on 3 or more prior occasions, while 16 incarcerated or detained in any facility, brought an action or appeal in a court of the United 17 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 18 upon which relief may be granted,” he may not proceed in forma pauperis and, instead, must pay 19 the full $402.00 filing fee in advance unless he is “under imminent danger of serious physical 20 injury.” 28 U.S.C. § 1915(g). “Not all unsuccessful cases qualify as a strike under § 1915(g).” 21 Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). If an action or an appeal “was not dismissed on 22 one of the specific enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. 23 Harris, 935 F.3d 670, 673 (9th Cir. 2019). “[D]ocket records may be sufficient to show that a prior 24 dismissal satisfies at least one of the criteria under § 1915(g).” Andrews, 398 F.3d at 1121. “[T]he § 25 1915(g) calculation includes claims dismissed prior to the effective date of the statute”—April 26 26, 1996. Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997). 27 “Dismissed appeals that rely on district court findings that the appeal was not taken in 28 good faith are the equivalent of a finding of frivolity and therefore count as a strike under 2 (citing Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013)), adopted by 2020 WL 6196226 (E.D. Cal. 3 Oct. 22, 2020); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) (reaffirming 4 Knapp’s holding that “two dismissed appeals counted as strikes because they relied on district 5 court findings that the appeal [was] not taken in good faith, and lack of good faith in this 6 context has been held to be equivalent to a finding of frivolity” (internal quotation marks and 7 citation omitted)). Moreover, “an appeal may count as a strike pursuant to [§] 1915(g) when the 8 appellate court denies a prisoner [in forma pauperis] status on appeal on grounds of frivolousness 9 ‘even though [the appellate court] did not dismiss the appeal until later when the [appellant] 10 did not pay the filing fee.’” Gipbsin, 2020 WL 4364649, at *5 (quoting Richey v. Dahne, 807 F.3d 11 1202, 1208 (9th Cir. 2015)). 12 Plaintiff accumulated at least four strikes before bringing this action. On three separate 13 occasions, the Ninth Circuit adopted the district court’s finding that Plaintiff’s appeal was not 14 taken in good faith, denied him permission to proceed in forma pauperis, and then dismissed the 15 appeal for failure to prosecute when he failed to pay the filing fee. Bailey v. Gunderson et al., No. 95- 16 17213, ECF Nos. 9, 14 (9th Cir. 1996); Bailey v. Hunnell, No. 98-15212, ECF Nos. 15, 17 (9th Cir. 17 1998); Bailey v. Leonhardt et al., No. 02-16378, ECF Nos. 12, 15 (9th Cir. 2002).1 Each of these 18 dismissals qualifies as a strike. See, e.g., Blackwell v. Jenkins, No. 19-cv-00442, 2021 WL 825747, at *3 19 (E.D. Cal. Mar. 4, 2021) (“The district court certified that the appeal was not taken in good faith. 20 The appellate court reviewed the record and confirmed that plaintiff was not entitled to IFP 21 status. The appellate court later dismissed plaintiff’s appeal for failure to prosecute when he 22 failed to pay the filing fee. An appellate court’s reliance on a district court’s finding that an 23 appeal was not taken in good faith is equivalent to a finding of frivolity. Even if the dismissal of 24 an appeal occurs later for another reason, the rejection of IFP status because an appeal is 25 26 27
28 1 The Court takes judicial notice of the docket sheets for these appeals, which are attached as exhibits to this order. 2 and citations omitted)), adopted by 2021 WL 1401836 (E.D. Cal. Apr. 14, 2021).2 3 Plaintiff incurred a fourth strike on May 9, 2018, when a court in this district dismissed 4 one of his civil rights actions “with prejudice because it [was] frivolous and cannot be cured by 5 amendment.” Bailey v. Herndon, No. 16-cv-02595, 2018 WL 2136356, at *1 (D. Nev. May 9, 2018). 6 Because Plaintiff accumulated four strikes before filing this action, he may not proceed in 7 forma pauperis unless he was “under imminent danger of serious physical injury” at the time he 8 filed the Complaint. 28 U.S.C. § 1915(g); see also Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 9 2007) (holding that availability of imminent-danger exception “turns on the conditions a 10 prisoner faced at the time the complaint was filed, not at some earlier or later time”). The 11 imminent-danger exception “functions as a limited safety valve for a prisoner who has exhausted 12 his three strikes but nevertheless faces imminent danger [of serious physical injury] stemming 13 from the violations of law alleged in his complaint.” Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 2022). 14 Plaintiff has not satisfied the imminent-danger exception here. The Complaint alleges 15 that Defendants violated the First Amendment and the Religious Land Use and Institutionalized 16 Persons Act by repeatedly cancelling Muslim Friday prayer services. ECF No. 1-1 at 3-10. 17 Nothing in the Complaint suggests that Plaintiff was “under imminent danger of serious 18 physical injury” when he filed this lawsuit. 28 U.S.C. § 1915(g). Because Plaintiff has 19 accumulated at least four strikes and has failed to satisfy the imminent-danger exception, he 20 must prepay the $402.00 filing fee in full to proceed with this action. 22 For the foregoing reasons, it is ordered that Plaintiff’s application to proceed in forma 23 pauperis (ECF No. 1) is denied. 24 25 2 See also Morris v. Petersen, No. 12-cv-02480, 2015 WL 4776088, at *2 (N.D. Cal. Aug. 13, 2015) 26 (assessing strike where “district court certified that the appeal was not taken in good faith,” and “[t]he Ninth Circuit agreed, required [plaintiff] to pay the full filing fee, and then dismissed the appeal when he 27 failed to do so”); Murillo v. McBride, No. 11-cv-1560, 2014 WL 2858529, at *3 (S.D. Cal. June 23, 2014) (assessing strike where district court “determined that the appeal was not filed in good faith,” and “the 28 Ninth Circuit agreed that [p]laintiff’s appeal was not taken in good faith,” “denied [p]laintiff’s motion to proceed IFP on appeal,” and then dismissed the appeal “for failing to prosecute” when plaintiff “failed to 1 It is further ordered that this action will be dismissed without prejudice unless Plaintiff 2 pays the $402.00 filing fee in full within thirty (30) days of entry of this order. 3 It is further ordered that the Clerk of the Court shall send Plaintiff two copies of this 4 order. Plaintiff shall make the necessary arrangements to have one copy of this order attached to 5 the check paying the filing fee. 6 It is further ordered that the Clerk of the Court shall retain the Complaint (ECF Nos. 1-1, 7 1-2) but will not file it at this time. 8 DATED this 14th day of June, 2022. / ) jy 10 / fo UNITED STATES DISIRICI JUDGE ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
EXHIBITS
Bailey v. Gunderson et al., No. 95-17213, ECF Nos. 9, 14 (9th Cir. 1996) Bailey v. Hunnell, No. 98-15212, ECF Nos. 15, 17 (9th Cir. 1998) Bailey v. Leonhardt et al., No. 02-16378, ECF Nos. 12, 15 (9th Cir. 2002) PACER fee: Exempt General Docket United States Court of Appeals for the Ninth Circuit of Appeals Docket #: 95-17213 Docketed: 11/21/199% of Suit: 3550 Prisoner-Civil Rights Termed: 02/07/1996 v. Gunderson, et al From: U.S. District Court for Nevada, Reno Status: Due Type Information: 1) prisoner 2) state 3) civil rights Court Information: District: 0978-3 : CV-94-00627-HDM Trial Judge: Howard D. McKibben, Senior District Judge Date Filed: 09/06/1994 Date Order/Judgment: Date NOA Filed: 11/06/1995 11/14/1995 Cases: None Cases: None
BAILEY (State Prisoner: 36192) Anthony Bailey Plaintiff - Appellant, [COR LD NTC Pro Se] HDSP - HIGH DESERT STATE PRISON (INDIAN SPRINGS) P.O. Box 650 Indian Springs, NV 89070-0650 V. GUNDERSON, individually and officially Thomas Patton, Esquire, Deputy Attorney General Defendant - Appellee, Direct: 702/687-4402 [COR LD NTC Dep State Aty Gen] Heroes Memorial Building Capital Complex Carson City, NV 89702 IGNACIO Thomas Patton, Esquire, Deputy Attorney General Defendant - Appellee, Direct: 702/687-4402 [COR LD NTC Dep State Aty Gen] (see above) DEPARTMENT OF PRISONS, JOHN AND JANE DOES _ Thomas Patton, Esquire, Deputy Attorney General Direct: 702/687-4402 Defendant - Appellee, [COR LD NTC Dep State Aty Gen] (see above)
v. LUPE GUNDERSON, individually and officially; JOHN IGNACIO; NEVADA DEPARTMENT OF PRISONS, JOHN AND JANE DOES 1- 10, Defendants - Appellees. 11/21/1995 () 4 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. CADS SENT (Y/N): n. setting schedule as follows: appellant's designation of RT is due 11/24/95; appellee's designation of RT is due 12/4/95; appellant shall order transcript by 12/14/95; court reporter shall file transcript in DC by 1/16/96; certificate of record shall be filed by 1/22/96; appellant's opening brief is due 3/1/96; appellees’ brief is due 4/1/96; appellants’ reply brief is due 4/15/96; [95-17213] (TM) [Entered: 11/21/1995 11:10 AM] 12/04/1995 (_) 9 Sent Notice of Referral to district court. [95-17213] (XX) [Entered: 12/04/1995 03:35 PM] 12/11/1995 () 3 __ Filed response of Howard D. McKibben to Sec. 1915 notice. Appeal filed in good faith (Y/N): NO CIVATT (XX) [Entered: 12/11/1995 05:21 PM] 12/22/1995 (} 4 Requested District Court casefile. (CIVATT) (XX) [Entered: 12/22/1995 09:56 AM] 12/26/1995 (_) 5 Received orig District Court case file in one volume (CIVATT). (XX) [Entered: 12/26/1995 01:50 PM] 01/10/1996 (_) g _ Filed Appellant Anthony Bailey's motion to proceed in forma pauperis, served on [2929516] (MOATT) [95-17213] (XX) [Entered: 01/11/1996 03:12 PM] 01/10/1996 () 7 _ Filed original and 7 copies Appellant Anthony Bailey opening brief ( Informal: yes) 6 pages ; served on 1/3/96 [95-17213] (XX) [Entered: 01/11/1996 03:14 PM] 01/12/1996 () g _ Filed order (Cynthia H. HALL, Melvin BRUNETTI): The DC has certified that this appeal is not taken in good faith. Our independent review of the record indicates that aplt is not entitled to IFP status for this appeal. (CITE) Accordingly, within 14 days of the date of this order, aplt shall pay to the DC the docketing and filing fees for this appeal and file proof of payment with this court. Failure to pay the fees will result in the automatic dismissal of the appeal by the clerk for failure to prosecute, regardless of further filings. 42-1. [6] If aplt pays the filing fee and files proof os such payment in this court, appellant's brief due 3/1/96; appellees’ brief due 4/1/96; reply brief is due 14 days from service of the answering brief. No motions for recon, clarification or modification of this order shall be filed or entertained. [95-17213] (XX) [Entered: 01/12/1996 09:29 AM] 01/19/1996 [} 44 District court casefile returned in 1 vol CR. ( Certified Mail#: P 189 687 577) (XX) [Entered: 01/19/1996 03:58 PM] 01/22/1996 (_) 49 Received letter from pro se dated 1/16/96 re: he has no money to pay fees. (sent letter quoting the 1/12/96 order) (XX) [Entered: 01/26/1996 04:24 PM] 02/06/1996 (_) 43 Return receipt received P 189 687 577 Cert. no. signed for on 1/29/96. (XX) [Entered: 02/06/1996 03:14 PM] 02/07/1996 [} 44 Order filed (Dep. Clk. dg) dismiss case for failure to prosecute (C.R. 42-1) A certified copy of this order sent to the district court shall act as and for the mandate of this court. ( Procedurally Terminated Without Judicial Action; Default. ) [95-17213] (XX) [Entered: 02/07/1996 02:34 PM] 02/12/1996 () 4g Received notification from District Court that docket fee has not been paid. ( Date: 2/8/96) [95-17213] (XX) [Entered: 02/12/1996 01:08 PM] 07/08/1996 [} 47 NO ORIGINAL RECORD (BL) (Entered: 07/08/1996 03:11 PM]
PACER fee: Exempt General Docket United States Court of Appeals for the Ninth Circuit of Appeals Docket #: 98-15212 Docketed: 02/13/1998 of Suit: 3550 Prisoner-Civil Rights Termed: 06/15/1998 v. Hunnell From: U.S. District Court for Nevada, Reno Status: Due Type Information: 1) prisoner 2) state 3) civil rights Court Information: District: 0978-3 : CV-96-00536-HDM(PHA) Trial Judge: Howard D. McKibben, Senior District Judge Date Filed: 08/21/1996 Date Order/Judgment: Date NOA Filed: 01/27/1998 02/02/1998 Cases: None Cases: Lead Member Start End Related 00-16228 00-15094 06/30/2000 00-16228 98-15212 06/30/2000 00-16228 98-16369 06/30/2000
BAILEY (State Prisoner: 36192) Anthony Bailey Plaintiff - Appellant, [COR LD NTC Pro Se] HDSP - HIGH DESERT STATE PRISON (INDIAN SPRINGS) P.O. Box 650 Indian Springs, NV 89070-0650 V. HUNNELL Anne B. Cathcart, Esquire, Deputy Attorney General Defendant - Appellee, [COR LD NTC Dep State Aty Gen] AGNV - Nevada Office of the Attorney General 100 N Carson Street Carson City, NV 89701 Thomas R.C. Wilson, Esquire [COR LD NTC Dep State Aty Gen] AGNV - Nevada Office of the Attorney General 100 N Carson Street Carson City, NV 89701
v. RAY HUNNELL, Defendant - Appellee. 02/13/1998 () 4 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL FOR APLE AND APLT IN PRO SE. CADS SENT (Y/N): N. setting schedule as follows: appellant's opening brief is due 3/25/98; appellee's brief is due 4/24/98; appellant's optional reply brief is due 14 days from service of the answering brief. [98-15212] (Hom, Howard) [Entered: 02/13/1998 09:11 AM] 02/13/1998 [} 9 Filed certificate of record on appeal RT filed in DC n/a. [98-15212] (Hom, Howard) [Entered: 02/13/1998 09:15 AM] 02/25/1998 (_) 3 Sent Notice of Referral to district court. Response to notice due 3/25/98. [98-15212] (XX) [Entered: 02/25/1998 03:23 PM] 03/06/1998 (_) 5 Received Appellant Anthony Bailey's brief in 0 copies 6 pages (Informal: yes) deficient no copies: notified aplt. Served on 3/6/98 [98-15212] (XX) [Entered: 03/09/1998 10:07 AM] 03/06/1998 () g _ Filed Appellant Anthony Bailey's motion to proceed in forma pauperis served on (no service) [3409263] (MOATT) [98-15212] (XX) [Entered: 03/09/1998 11:50 AM] 03/09/1998 [} 7 Filed response of Howard D. McKibben to Sec. 1915 notice. Appeal filed in good faith (Y/N): NO - MOATT (XX) [Entered: 03/09/1998 11:03 AM] 03/18/1998 (_) g Received letter from pro se re: in response to brief deficiency letter, aplt states she cannot send copies. (MOATT) (XX) [Entered: 03/20/1998 09:47 AM] 04/20/1998 [} 44 Requested District Court casefile. (MOATT) (Kwong, Johnny) [Entered: 04/20/1998 10:41 AM] 04/27/1998 [] 49 Received orig. 15 copies Ray Hunnell's brief of 17 pages; served on 4/23/98 deficient: ifp pending [98-15212] (XX) [Entered: 04/28/1998 03:23 PM] 05/01/1998 (_) 43 Received original District Court case file. (Kwong, Johnny) [Entered: 05/01/1998 11:44 AM] 05/08/1998 (_) 44 Received orig. 0 copies Anthony Bailey's reply brief ( Informal: yes ) of 9 pages; served on 5/4/98 deficient ifp pending. [98-15212] (XX) [Entered: 05/08/1998 02:21 PM] 05/15/1998 () 45 Filed order (Stephen S. TROTT, Ferdinand F. FERNANDEZ): The DC has certified that this appeal is not taken in good faith, and so has revoked aplt's IFP status. Our review of the record confirms that aplt is not entitled to IFP status for this appeal. (CITE). Accordingly, within 21 days after the date of this order, aplt shall pay $105 to the DC as the docketing and filing fees for this appeal and file proof of payment with this court. Failure to pay the fees will result in the automatic dismissal of the appeal by the clerk for failure to prosecute, regardless of further filings. 42-1. NO MOTIONS FOR RECON, CLARIFICATION, OR MODIFICATION of the denial of IFP status for thi appeal hall be filed or entertained If aplt pay the required fee the clerk hall file aplt opening & reply briefs and make the necessary copies and file aple's brief. The case will be ready for calendaring after the filing of the briefs. [98-15212] (XX) [Entered: 05/15/1998 10:03 AM] 06/01/1998 (_) 4g Received Appellant Anthony Bailey's motion to strike order of 5/15/98; served on 5/21/98 [3462034] (cannot accept per order of 5/15/98) [98-15212] (XX) [Entered: 06/01/1998 03:42 PM] 06/08/1998 (_) 4g Received letter from pro se dated 5/31/98 re: wants copy of certification from DC. (sent copy to aplt) (XX) [Entered: 06/29/1998 12:47 PM] 06/15/1998 (_) 47 Order filed (Dep. Clk. dg) dismiss case for failure to prosecute (C.R. 42-1) A certified copy of this order sent to the district court shall act as and for the mandate of this court. ( Procedurally Terminated Without Judicial Action; Default. ) [98-15212] (XX) [Entered: 06/15/1998 09:58 AM] 07/06/1998 (_) 99 _ District court casefile returned. ( Certified Mail#: UPS) (Kwong, Johnny) [Entered: 07/06/1998 11:16 AM] 10/14/1999 (_) 94 NO ORIGINAL RECORD (BL) [Entered: 10/14/1999 11:29 AM]
PACER fee: Exempt General Docket United States Court of Appeals for the Ninth Circuit of Appeals Docket #: 02-16378 Docketed: 07/15/200: of Suit: 3555 Prison Condition Termed: 11/18/2002 v. Leonhardt, et al From: U.S. District Court for Nevada, Reno Status: Due Type Information: 1) prisoner 2) state 3) civil rights Court Information: District: 0978-3 : CV-99-00414-HDM Trial Judge: Howard D. McKibben, Senior District Judge Date Filed: 07/30/1999 Date Order/Judgment: Date NOA Filed: 06/27/2002 07/08/2002 Cases: 00-15094 Date Filed: 01/19/2000 Date Disposed: 03/27/2000 Disposition: Rule 42-1 Dismissal - Clerk Order 00-16228 Date Filed: 06/30/2000 Date Disposed: 12/28/2000 Disposition: COA Denied - Judge Order 01-71249 Date Filed: 07/24/2001 Date Disposed: 09/14/2001 Disposition: Denied - Judge Order 95-16507 Date Filed: 08/10/1995 Date Disposed: 10/15/1996 Disposition: Rule 42-1 Dismissal - Clerk Order 95-17087 Date Filed: 11/03/1995 Date Disposed: 01/25/1996 Disposition: Rule 42-1 Dismissal - Clerk Order 95-17213 Date Filed: 11/21/1995 Date Disposed: 02/07/1996 Disposition: Rule 42-1 Dismissal - Clerk Order 96-15609 Date Filed: 04/10/1996 Date Disposed: 01/24/1997 Disposition: Affirmed - Memorandum 96-16300 Date Filed: 07/15/1996 Date Disposed: 12/18/1996 Disposition: Rule 42-1 Dismissal - Clerk Order 97-17450 ~=Date Filed: 12/31/1997 Date Disposed: 01/26/1998 Disposition: COA Denied - Judge Order 97-80037 Date Filed: 01/29/1997 Date Disposed: 02/21/1997 Disposition: Denied - Judge Order 98-15212 Date Filed: 02/13/1998 Date Disposed: 06/15/1998 Disposition: Rule 42-1 Dismissal - Clerk Order 98-16369 Date Filed: 07/27/1998 Date Disposed: 08/17/1999 Disposition: Remanded - Memorandum Cases: Lead Member Start End Related 02-16378 02-73852 11/13/2002
BAILEY (State Prisoner: 36192) Anthony Bailey Plaintiff - Appellant, [NTC Pro Se] HDSP - HIGH DESERT STATE PRISON (INDIAN SPRINGS) P.O. Box 650 Indian Springs, NV 89070-0650 V. LEONHARDT Julie A. Slabaugh, Esquire, Senior Deputy Attorney General Defendant - Appellee, Direct: 775-684-1131 Email: jslabaugh@ag.nv.gov Fax: 775-684-1145 [COR LD NTC State Atty General] AGNV - Nevada Office of the Attorney General 100 N Carson Street Carson City, NV 89701 BAYER Julie A. Slabaugh, Esquire, Senior Deputy Attorney General Defendant - Appellee, Direct: 775-684-1131 [COR LD NTC State Atty General] (see above) S. DEL PAPA Julie A. Slabaugh, Esquire, Senior Deputy Attorney General Defendant - Appellee, Direct: 775-684-1131 [COR LD NTC State Atty General] (see above)
CAROL PLOYHAR Julie A. Slabaugh, Esquire, Senior Deputy Attorney General Defendant - Appellee, Direct: 775-684-1131 [COR LD NTC State Atty General] (see above) v JOHN LEONHARDT; ROBERT BAYER; FRANKIE S. DEL PAPA; JACKIE CRAWFORD; CAROL PLOYHAR, Defendants - Appellees. 07/15/2002 () 4 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL AND APLT PRO SE setting schedule as follows: appellant's designation of RT is due 7/18/02; appellee's designation of RT is due 7/29/02,, ; appellant shall order transcript by 8/7/02; court reporter shall file transcript in DC by 9/9/02; certificate of record shall be filed by 9/16/02 ; appellant's opening brief is due 10/24/02; appellees’ brief is due 11/25/02,, ; appellants’ reply brief is due 12/9/02. [02-16378] (GR) [Entered: 07/15/2002 04:11 PM] 07/15/2002 () 9 Received document entitled "Notice of Appeal" by appellant Anthony Bailey. (CASEFILE) [02-16378] (RT) [Entered: 07/18/2002 04:32 PM] 07/22/2002 () 3 Sent Notice of Referral to district court. [02-16378] (XX) [Entered: 07/22/2002 01:43 PM] 07/22/2002 (} 4 Received pro se apints Civil Appeals Docketing Statement, deficient; no proof of service; notified pro se aplnt: no. (CONFATT) [02-16378] [02-16378] (RT) [Entered: 07/24/2002 02:42 PM] 07/31/2002 (_) 5 Filed response of Howard D. McKibben to Sec. 1915 notice. Appeal filed in good faith (Y/N): No MOATT (RT) [Entered: 08/02/2002 09:56 AM] 08/05/2002 (_) g _ Filed Appellant Anthony Bailey's motion to proceed in forma pauperis, served on 8/2/02 (to MOATT) [02-16378] (RT) [Entered: 08/06/2002 03:02 PM] 08/12/2002 ([} 7 Received Appellant Anthony Bailey's addendum (submission of financial certificate) supporting appellant's motion to proceed in forma pauperis, served on 8/6/02 (to MOATT) [02-16378] (RT) [Entered: 08/15/2002 02:50 PM] 09/04/2002 (_) g_ Case rejected from Circuit Mediation Program. (SA) [Entered: 09/05/2002 08:39 AM] 09/09/2002 (_) g Rec'd notice of change of address from Anthony Bailey for Appellant Anthony Bailey dated 8/30/02: Anthony Bailey, PO Box 650, Indian Springs, NV 89018. [02-16378] (RT) [Entered: 09/11/2002 02:14 PM] 10/07/2002 (_) 44 Received Appellant Anthony Bailey's brief in 0 copies 5 pages w/exhibits attached (Informal: Yes) deficient fee not paid, no copies. Notified pro se aplInt: no - ifp motion pending. Served on 10/5/02 [02-16378] (RT) [Entered: 10/08/2002 02:24 PM] 10/15/2002 (_) 49 Filed order ( Ferdinand F. FERNANDEZ, Susan P. GRABER, ): The district court has certified that this appeal is not taken in good faith, and so has revoked appellant's in forma pauperis status. Our review of the record confirms that appeallant is not entitled to in forma pauperis status for this appeal and appellant's motion to proceed in forma pauperis is denied. See 28 U.S.C. Section 1915(a). Accordingly, appellant's motion to proceed in forma pauperis is denied. Within 21 days of the filing date of this order, appellant shall pay $105.00 to the district court as the docketing and filing fees for this appeal and file proof of payment with this court. Failure to pay the fees will result in the automatic dismissal of the appeal by the Clerk for failure to prosecute, regardless of further filings. See 9th Cir. R. 42-1. No Motions for reconsideration, clarification, or modification of the denial of appellant's in forma pauperis status shall be filed or entertained. If appellant pays the fees as required and files proof of such payment in this court, appellant shall simultaneously show cause why the judgment challenged in this appeal should not be summarily affirmed. See 9th Cir. R. 3-6. If appellant elects to show cause, appellees may file a response within 10 days of service of appellant's response. If appellant fails to file a response to this show cause order, the Clerk shall dismiss this appeal for failure to prosecute. See 9th Cir. R. 42-1. Briefing is suspended pending further order of this court. [02-16378] (RT) [Entered: 10/15/2002 09:30 AM] 11/04/2002. (_) 44 Received Appellant Anthony Bailey's motion to proceed in forma pauperis; served on 10/29/02 (CASEFILES - no motions for reconsideration of ifp status - see 10/15/02 order) [02-16378] (RT) [Entered: 11/05/2002 11:05 AM] 11/18/2002 () 45 Order filed (Dep. Clk. MOATT: TK) dismiss case for failure to prosecute (C.R. 42-1) This court's October 15, 2002 order confirmed appellant was not entitled to in forma pauperis status for this appeal, and ordered appellant, within 21 days, to pay the filing fees and simultaneoulsy show cause why the order challenged in this appeal should not be summarily affirmed. The court's order further stated that no motions for reconsideration, clarification or modification of the denial of appellant's in forma pauperis status would be filed or entertained, and warned appellant that failure to respond to the order would result in the automatic dismissal of the appeal by the Clerk of the Court. To date, appellant has not paid the fees or responded to the court's order to show cause. Accordingly, this appeal is dismissed for failure to prosecute. See 9th Cir. R. 42-1. A certified copy of this order sent to the district court shall act as and for the mandate of this court. ( Procedurally Terminated Without Judicial Action; F.R.A.P. 42. ) [02-16378] (RT) [Entered: 11/18/2002 02:04 PM] 12/05/2002 (_) 1g Received Appellant Anthony Bailey's motion to recall court's 11/18/02 order where appellant has shown cause to be heard in forma pauperis; served on 11/27/02 (CASEFILE - no recons on ifp status) [02-16378] (RT) [Entered: 12/06/2002 03:12 PM] 12/30/2002 () 47 Received from Appellant Anthony Bailey: " notice of appeal to this courts disregards for FRAP 24(2)". (CASEFILES) (RT) [Entered: 01/03/2003 12:20 PM] 03/03/2005 (_) 4g NO ORIGINAL RECORD (XX) [Entered: 03/03/2005 08:45 AM]