(PC) Bolin v. Northern District Court

Opinion

1 2 5 6 PAUL C. BOLIN, E88100, Case No. 23-cv-02022-CRB (PR)

7 Plaintiff, ORDER OF DISMISSAL 8 v.

9 NORTHERN DISTRICT COURT, et al., 10 Defendant(s).

11 On January 30, 2023, plaintiff, a state prisoner at the California Medical Facility (CMF) in 12 Vacaville and frequent litigant in federal court, filed a pro se civil rights complaint under 42 13 U.S.C. § 1983 in this court alleging various wrongdoing by the clerk and a deputy clerk of the 14 Ninth Circuit in connection with his federal habeas appeal. See Bolin v. Dwyer, No. 23-cv-00550- 15 CRB (PR) (N.D. Cal. filed Jan. 30, 2023) (“Bolin v. Dwyer”). He also sought leave to proceed in 16 forma pauperis (IFP) under 28 U.S.C. § 1915. See Bolin v. Dwyer ECF No. 2. 17 On February 9, 2023, the court denied plaintiff’s application to proceed IFP because he: (1) had three or more prior prisoner actions dismissed by a federal court on the grounds that they 18 are frivolous, malicious or fail to state a claim upon which relief may be granted, and (2) was not 19 seeking relief from a danger of serious physical injury which was imminent at the time of filing. 20 See id. ECF No. 7 at 1-2 (applying 28 U.S.C. § 1915(g)). Under the law of the circuit, the court 21 afforded plaintiff 28 days to show cause why § 1915(g) did not bar IFP status for him or pay the 22 requisite $ 402.00 filing fee. The court made clear that failure to show cause or pay the requisite 23 filing fee of $ 402.00 within the designated time would result in the dismissal of this action 24 without prejudice to bringing it in a new paid complaint. See id. at 2. Plaintiff subsequently filed 25 a response to the court’s February 9, 2023 order. 26 On March 15, 2023, the court rejected plaintiff’s arguments that he was placed in grave 27 danger of loss of life by wrongful execution by defendants’ refusal to file and permit a judicial ] hearing on his pro se motion for substitution of counsel in his federal habeas appeal and that 28 2 } US.C. § 1915(g) is unconstitutional, and dismissed the action without prejudice to bringing it in a 3 new paid complaint. See id. ECF No. 10 at 1-3. 4 On April 8, 2023, plaintiff prepared a pleading to the California Court of Appeal titled 5 “Appeal from District Court Case, Northern District Number 23-cv-00550-CRB” and submitted it 6 tothe United States District Court for the Eastern District of California. The clerk of the Eastern 7 District filed the pleading and accompanying documents as a new prisoner civil rights case, see g Bolin v. Northern District Court, No. 23-cv-0727 KJN (PC) (E.D. Cal. filed April 18, 2023), and 9 the assigned magistrate judge transferred it to this court. 10 On April 26, 2023, the clerk of this court gave the case a new case number and assigned the case to the undersigned. See Bolin v. Northern District Court, No. 23-cv-02022-CRB (PR)

2 (N.D. Cal. filed Apr. 26, 2023). E 3 Plaintiff may not appeal the dismissal of his prior civil rights case, Bolin v. Dwyer, by S 4 filing a new civil rights case. An appeal may be taken only by filing a valid notice of appeal 3 13 (“NOA”) in the district court. Fed. R. App. P. 3(a)(1). The NOA must identify each appellant, the 6 judgment or order or part thereof being appealed and name the court to which the appeal is taken. See West v. United States, 853 F.3d 520, 521 (9th Cir. 2017) (listing requirements in Fed. R. App. 5 P. 3(c) and noting that they are jurisdictional). An appeal from this court is taken to the United States Court of Appeals for the Ninth Circuit. ” The instant case accordingly is DISMISSED without prejudice to plaintiff filing a NOA of 20 this court’s March 15, 2023 order of dismissal of Bolin v. Dwyer. But plaintiff is advised that a 21 NOA in Bolin v. Dwyer at this late date must be accompanied by a motion for an extension of 22 time to appeal and by the appropriate filing fee to appeal. 23 The clerk is directed to close this case and terminate all pending motions as moot. 2 Dated: June 9, 2023 26 - K~ — 27 CHARLES R. BREYER 98 United States District Judge