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David C. Patkins v. C/O R. Gonzales
November 15, 2012
DAVID C. PATKINS, PLAINTIFF,
C/O R. GONZALES, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding pro se with a civil rights action filed pursuant to 42 U.S.C. § 1983. On July 15, 2011, the undersigned issued findings and recommendations which recommended denying plaintiff's motion to proceed in forma pauperis and dismissing this action without prejudice after determining that "[a] writ of habeas corpus is plaintiff's sole remedy by which to attack in federal court his disciplinary conviction and sentence[.]" (Dkt. No. 9 at p. 4-5.) On September 27, 2011, the assigned District Judge adopted those findings and recommendations in full. (See Dkt. No. 13.)
Thereafter, plaintiff filed a notice of appeal on October 6, 2011. (See Dkt. No. 15.) On March 9, 2012, plaintiff filed a motion to proceed in forma pauperis with this court which will be construed as a motion to proceed in forma pauperis on appeal. (See Dkt. No. 20.) Federal Rule of Appellate Procedure 24(a)(1) states that a party to a district court action who desires to appeal in forma pauperis must file a motion in the district court which includes 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."
Plaintiff's motion includes the requisite level of detail to demonstrate his inability to pay for fees and costs. The motion also includes plaintiff's claim of entitlement to redress. (See Dkt. No. 20 at p. 1 ("I am entitled to the relief sought in the complaint/petition/motion.").) However, the motion does not state the issues upon which petitioner wishes to present on appeal. Thus, it does not fully comply with Rule 24(a)(1)(C) of the Federal Rules of Appellate Procedure with respect to the requirements for what is to be included in a motion to proceed in forma pauperis on appeal. The court will give plaintiff thirty days in which to supplement his motion to proceed in forma pauperis on appeal by providing a statement of the issues that he intends to present on appeal.
Accordingly, IT IS HEREBY ORDERED that plaintiff is given thirty (30) days from the date of this order to file a supplemental brief to his motion to proceed in forma pauperis on appeal in which plaintiff states the issues that he intends to present on appeal. Failure of plaintiff to supplement his motion to proceed in forma pauperis on appeal may result in a recommendation that the motion to proceed in forma pauperis on appeal be denied for failing to comply with Federal Rule of Appellate Procedure 24(a)(1).
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