(PC) Braley v. Hicks

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS D. BRALEY, No. 1:23-cv-00206-JLT-SAB (PC) 12 Plaintiff, USCA No. 23-2349 13 v. ORDER DENYING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS ON 14 R. HICKS, et al., APPEAL 15 Defendants. (Doc. 26) 16 17 Thomas D. Braley, is a state prisoner, who sought to proceed in forma pauperis in this 18 action. On June 20, 2023, the Court denied Plaintiff’s motion to proceed in forma pauperis and 19 ordered Plaintiff to pay the filing fee within 21 days. (Doc. 19.) The Court cautioned Plaintiff that 20 “failure to pay the required fee as ordered will result in the dismissal of the action without 21 prejudice.” (Id. at 2.) On July 31, 2023, the Court denied Plaintiff’s motion for reconsideration of 22 and directed Plaintiff to pay the filing fee within 20 days. (Doc. 21 at 3.) Again, Plaintiff failed to 23 pay the filing, and filed a second motion for reconsideration of the Court’s July 31, 2023 order. 24 The Court denied Plaintiff’s second motion for reconsideration and dismissed the action on 25 August 28, 2023. (Doc. 23.) 26 On September 20, 2023, Plaintiff filed a Notice of Appeal of the order dismissing the 27 action. (Doc. 25.) He now seeks to proceed in forma pauperis on appeal. 28 /// 1 Pursuant to the Federal Rules of Appellate Procedure,

2 A party who was permitted to proceed in forma pauperis in the district- court action . . . may proceed on appeal in forma pauperis without further 3 authorization, unless: (A) the district court - before or after the notice of appeal is filed - 4 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 5 reasons for the certification or finding; or (B) a statute provides otherwise. 6

7 Fed. R. App. P. 24(a)(3). In addition, the Rules indicate:

8 The district clerk must immediately notify the parties and the court of appeals when the district court does any of the following: 9 (A) denies a motion to proceed on appeal in forma pauperis; (B) certifies that the appeal is not taken in good faith; or 10 (C) finds that the party is not otherwise entitled to proceed in forma pauperis. 11

12 Fed. R. App. P. 24(a)(4). 13 A plaintiff’s request to proceed in forma pauperis is governed by 28 U.S.C. § 1915, which 14 states a prisoner may not bring a civil action under the provision, “if the prisoner has, on 3 or 15 more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in 16 a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 17 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent 18 danger of serious physical injury.” Plaintiff has been subject to section 1915(g) since at least 19 2011, and he remains subject to section 1915(g) on appeal. Williams v. Paramo, 775 F.3d 1182, 20 1190 (9th Cir. 2014). Moreover, the Court finds that Plaintiff has not met the imminent danger 21 exception to section 1915(g) and therefore, he is not entitled to proceed in forma pauperis on 22 appeal. Fed. R. App. P. 24(a)(4)(C); Williams, 775 F.3d at 1190. Accordingly, the Court 23 ORDERS: 24 1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff is not entitled to proceed in forma 25 pauperis on the appeal filed on September 20, 2023. 26 2. Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(C), this order serves as 27 notice to the parties and the United States Court of Appeals for the Ninth Circuit of 28 the finding that Plaintiff is not entitled to proceed in forma pauperis for this appeal. 1 3. The Clerk of Court shall serve a copy of this order on the parties and the United 2 States Court of Appeals for the Ninth Circuit. 3 4 IT IS SO ORDERED. 5 Dated: _ March 6, 2024 Cerin | Tower TED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28