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James S. Pobursky, et al v. Madera County

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 16, 2011

JAMES S. POBURSKY, ET AL.,
PLAINTIFFS,
v.
MADERA COUNTY, ET AL.,
DEFENDANTS.

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

FINDINGS AND RECOMMENDATION REGARDING PLAINTIFFS' MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL (Document 241)

On January 13, 2011, Plaintiffs James and Wanda Pobursky filed a notice of appeal of this Court's December 13, 2010, order dismissing this action with prejudice.

Also on January 13, 2011, Plaintiffs filed an "Affidavit Accompanying Notice of Appeal to File In Forma Pauperis."

On February 17, 2011, the Court determined that their application was insufficient and ordered Plaintiffs to complete the attached "Affidavit Accompanying Motion for Permission to Appeal In Forma Pauperis." Plaintiffs were ordered to complete the documentation within twenty (20) days of the date of the order.

On March 11, 2011, Plaintiffs responded with a "Supplemental Affidavit Accompanying Motion for In Forma Pauperis on Appeal."

For the reasons that follow, the Court recommends that Plaintiffs' motion be denied.

DISCUSSION

Plaintiffs' March 11, 20110, filing is the latest in a long history of refusals to follow this Court's orders. In the Court's February 17, 2011, order, the Court explained that their January 13, 2011, filing did not provide sufficient information to allow for a determination. It explained that although the affidavit stated that Mr. Pobursky was the sole supporter of his family and could not pay court fees, his statement lacked sufficient financial detail. The Court also explained that although they stated that they were entitled to redress on appeal, Plaintiffs failed to identify the issues they intended to present on appeal. The Court cited Federal Rule of Appellate Procedure 24(a)(1), which requires both a detailed description of Plaintiffs' financial information and a statement of the issues on appeal. To assist Plaintiffs in completing this information, the Court attached the Ninth Circuit's required form and also referred Plaintiffs to the Ninth Circuit's website where the form could be found.

Rather than simply comply with the Court's order and complete the form, Plaintiffs submitted their own document. Although the filing states two issues that Plaintiffs intend to raise on appeal, it does not provide any detailed financial information as required by Rule 24(a)(1). The filing again states that Mr. Pobursky is the sole supporter of his family and is unable to pay court fees. It adds that he has not returned to work and that the family income falls below the poverty level guidelines of the United States.

The financial information provided is not sufficient to make a determination and does not comply with the Court's February 17, 2011, order. Despite this Court's clear explanation and an opportunity to correct the prior deficiencies, Plaintiffs have again taken it upon themselves to decide what information they will disclose to the Court. The information provided does not allow the Court to determine whether Plaintiffs are entitled to proceed in forma pauperis on appeal and the Court recommends that the motion be DENIED.

RECOMMENDATION

Based on the above, the Court RECOMMENDS that Plaintiffs' application to proceed in forma pauperis on appeal be DENIED.

These Findings and Recommendation are submitted to the Honorable Anthony W. Ishii, United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 631 (b)(1)(B) and Rule 305 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty days (plus three days if served by mail) after being served with a copy, any party may serve on opposing counsel and file with the court written objections to such proposed Findings and Recommendation. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within ten (10) days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1).

IT IS SO ORDERED.

20110316

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