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Howard Alan Zochlinski v. Regents of the University of California

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 16, 2012

HOWARD ALAN ZOCHLINSKI, PLAINTIFF
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL., DEFENDANTS.

ORDER

Plaintiff, who is proceeding pro se in a civil rights action, 42 U.S.C. § 1983, has timely filed a notice of appeal from the order dated December 9, 2011, denying plaintiff's motion for reconsideration. FED. R. CIV. P. 59, 60. Rule 24(a)(1) of the Federal Rules of Appellate Procedure provides that a party to a district court action who desires to proceed in forma pauperis on appeal must file a motion in the district court which:

(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.

FED. R. APP. P. 24(a)(1). Plaintiff has demonstrated his inability to pay but has not otherwise complied with Rule (24)(a)(1) .

In addition, under 28 U.S.C. § 1915(a)(3) a court may deny a request to proceed in forma pauperis on appeal if it determines that the appeal is not taken in good faith. The good faith requirement is satisfied if the plaintiff seeks review of any issue that is "not frivolous." Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir.1977) (quoting Coppedge v. United States, 369 U.S. 438, 445 (1962)). An action is "frivolous" for purposes of section 1915 if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 327(1989); Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir.1984).

Plaintiff did not timely appeal the final judgment in this case and did not file his motion in sufficient time to toll the running of the time to appeal. FED. R. APP. P. 4(a)(4).

Accordingly, plaintiff can appeal only the denial of the motion he denominated as a motion for a new trial. Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir.1995); Floyd v. Lewis, 929 F.2d 1390, 1400 (9th Cir. 1991). The court denied plaintiff's motion because it merely repackaged arguments he presented to the magistrate judge, unsuccessfully. His appeal of this denial is frivolous, lacking an arguable basis in law and fact.

In addition to the request to proceed in forma pauperis, plaintiff has filed a request for an extension of time to file his transcript designation and has filed such a designation. In light of the fact that plaintiff has filed his designation, the request is moot.

IT IS THEREFORE ORDERED that:

1. Plaintiff's request for additional time to file a transcript designation (ECF No. 56) is denied as moot; and

2. Plaintiff's request to proceed in forma pauperis on appeal (ECF No. 55) is denied.

20120216

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