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Robert P. Benyamini v. L. Johnson

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 22, 2011

ROBERT P. BENYAMINI,
PLAINTIFF,
v.
L. JOHNSON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS ON APPEAL (DOC. 49)

Plaintiff Robert P. Benyamini ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation. This action was dismissed on July 27, 2010, for Plaintiff's failure to obey a court order. On October 1, 2010, Plaintiff filed a motion for reconsideration. On March 8, 2011, the Court denied Plaintiff's motion. On August 1, 2011, Plaintiff filed a motion to reopen the time to file an appeal. On August 2, 2011, the Court denied Plaintiff's motion. On August 12, 2011, Plaintiff filed a notice of appeal of the Court's August 2, 2011 Order.

Pursuant to 28 U.S.C. § 1915(a)(3), "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." See also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where district court finds the appeal to be frivolous).

In this instance, the Court finds Plaintiff's appeal to be frivolous. Plaintiff had been ordered to submit service documents, but failed to do so in a timely manner. The Court issued an order dismissing Plaintiff's action for failure to obey a court order. Plaintiff then filed a motion for reconsideration, which the Court denied on March 8, 2011. Plaintiff then waited until August 1, 2011 to file a motion to reopen the time to file an appeal.

Pursuant to Rule 4 of the Federal Rules of Appellate Procedure, the deadline to file an appeal runs from the entry of the order disposing of a motion for relief under Rule 60 of the Federal Rules of Civil Procedure. Because the Court disposed of Plaintiff's Rule 60 motion on March 8, 2011, Plaintiff had up to thirty days afterwards in which to file his notice of appeal. There is no record that Plaintiff filed a timely notice with the Court. Plaintiff's motion to reopen the time to file an appeal fails to meet two of the three conditions enumerated in Rule 4(a)(6) of the Federal Rules of Appellate Procedure. Accordingly, Plaintiff's appeal of the Court's August 2, 2011 order is frivolous and not taken in good faith.

Based on the foregoing, it is HEREBY ORDERED that Plaintiff's in forma pauperis status is REVOKED for purposes of his appeal.

IT IS SO ORDERED.

b9ed48

20110822

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