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Fred Price v. S. R. Cunningham

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 23, 2011

FRED PRICE,
PLAINTIFF,
v.
S. R. CUNNINGHAM, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTIONS TO PROCEED IN FORMA PAUPERIS (ECF Nos. 36, 44)

Plaintiff Fred Price ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 25, 2011, the Court issued an order revoking Plaintiff's in forma pauperis status and requiring him to pay the full filing fee within forty five days. On June 3, 2011, Plaintiff filed a notice of appeal, a motion to proceed in forma pauperis,*fn1 and a motion for a sixty day extension of time. (ECF Nos. 36, 37, 38.) On June 14, 2011, Plaintiff filed a motion for reconsideration. (ECF No. 43.) On June 21, 2011, Plaintiff filed a second motion to proceed in forma pauperis. (ECF No. 44.)

The Court found that Price v. Parks, case no. 2:02-cv-05955-UA-SH (C.D. Cal. August 21, 2002); Price v. Rianda, case no. 2:02-cv-07526-UA-SH (C.D. Cal. October 3, 2002); and Price v. Parks, case no. 2:02-cv-07724-UA-SH (C.D. Cal. October 16,2002) count as strikes pursuant to 28 U.S.C. § 1915(g). According Plaintiff is not entitled to proceed in forma pauperis in this action. To the extent that Plaintiff is requesting reconsideration of the prior order of the Court, upon the filing of a notice of appeal, jurisdiction is transferred from the district court to the court of appeals. City of Los Angeles, Harbor Div. V. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th Cir. 2001). Therefore, filing a notice of appeal divests the district court of jurisdiction over the issues involved in the appeal. Id. Since Plaintiff filed a timely notice of appeal this Court lacks jurisdiction to entertain Plaintiff's motion for an extension of time and motion for reconsideration. The motions will be addressed after a decision is issued in Plaintiff's appeal.. Accordingly, Plaintiff's motions to proceed in forma pauperis are HEREBY DENIED.

IT IS SO ORDERED.

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