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Clark v. Meyer

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 18, 2010

RAYMOND DONALD CLARK, APPELLANT,
v.
MICHAEL HUGH MEYER, ET AL., APPELLEES.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING APPLICATION TO PROCEED IN FORMA PAUPERIS

(Document 1)

This miscellaneous action was opened on November 4, 2010, for ruling on Plaintiff's motion to proceed in forma pauperis on appeal at the request of the Bankruptcy Appellate Panel. In re Perroton, 958 F.2d 889 (9th Cir. 1992) (Bankruptcy Appellate Panel lacks authority to waive payment of statutorily required filing fees because it is not a "court of the United States" within the meaning of 28 U.S.C. § 1915(a)).

Plaintiff, proceeding pro se, filed the underlying Chapter 13 action in the United States Bankruptcy Court for the Eastern District of California on June 15, 2010. Also on June 15, 2010, Plaintiff moved for waiver of the filing fee. The request was denied on June 24, 2010, because fee waivers are not allowed in Chapter 13 actions. 28 U.S.C. § 1930(f). An order requiring payment of the filing fee in installments was issued.

On August 26, 2010, the Bankruptcy Court issued an order to show cause why the action should not be dismissed for Plaintiff's failure to pay the filing fee installments. The hearing was subsequently deemed moot because the case was dismissed.

On September 16, 2010, Plaintiff filed a notice of appeal. On October 14, 2010, he filed the motion to proceed in forma pauperis that is now before this Court.

Plaintiff's motion states that the is entitled to proceed in forma pauperis on appeal because he proceeded in forma pauperis in the district court. Plaintiff did not, however, proceed in forma pauperis in the underlying action because fees cannot be waived in Chapter 13 actions. Instead, he was ordered to pay the $274.00 filing fee in installments but failed to do so.

As Plaintiff did not proceed informa pauperis in the underlying action, the Court is without the necessary information to decide his motion. Federal Rule of Appellate Procedure 24(a)(1) requires an affidavit that:

(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs;

(B) claims an entitlement to redress; and

(C) states the issues that the party intends to present on appeal.

While Plaintiff claims an entitlement to redress and states his issues on appeal, he has not presented the necessary financial information. Accordingly, within thirty (30) days of the date of this order, Plaintiff must (1) submit an application to proceed in forma pauperis, along with all necessary documentation; OR (2) pay the $255.00 filing fee.

IT IS SO ORDERED.

20101118

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