(PC) Cruz v. Ballesteros ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, No. 1:20-cv-00376-DAD-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO DEFER APPELLATE FILING FEES 13 v. (Doc. No. 24) 14 FNU BALLESTEROS, ET. AL., 15 Defendants. 16 17 On March 16, 2021, plaintiff Guillermo Trujillo Cruz’s filed a notice of appeal (Doc. No. 18 21) from this court’s judgment (Doc. No. 20) following dismissal of his case due to his failure to 19 pay the required filing fee (Doc. No. 17) after his request to proceed in forma pauperis was 20 denied (Doc. No. 10). On March 17, 2021, the Clerk of the Court sent plaintiff a bill for fees due 21 in connection with his notice of appeal. (Doc. No. 22-2.) On March 26, 2021, plaintiff filed a 22 document requesting deferral of his appellate fees. (Doc. No. 24.) Specifically, he requests that 23 he be permitted to give the court an “I Owe You” for the fees due so that when he “obtains any 24 relief” in this case the fees can be deducted from the proceeds of the judgment. (Id.) Because 25 there is no statute or rule that would permit the court to accept such a future promise to pay, the 26 court construes this filing as a request to proceed in forma pauperis on appeal under Federal Rule 27 of Appellate Procedure 24(a) (permitting a motion in the district court by any person desiring to 28 appeal in forma pauperis). 1 Appellate Rule 24(a) requires a person wishing to proceed in forma pauperis on appeal to 2 | submit an affidavit demonstrating his inability to pay, among other things. Here, no such 3 | affidavit has been presented and the court already has reviewed and rejected plaintiff's prior in 4 | forma pauperis application, finding that plaintiff had suffered three prior strike dismissals under 5 | 28 U.S.C. § 1915(g) and that none of the exceptions to the three-strikes rule applied to him. 6 | (Doc. No. 10.) The three-strikes rule applies with equal force to requests to proceed in forma 7 || pauperis on appeal. See 28 U.S.C. § 1915(g). Accordingly, plaintiff must pay the $505.00 8 | appellate filing and docketing fees up front. See Bruce v. Samuels, 577 U.S. 82, 86 (2016) 9 | (noting that for most plaintiff with three qualifying strike dismissals, all future filing fees become 10 | payable up front). Failure to pay the filing fee may result in the dismissal of the appeal for failure 11 || to prosecute. See Ninth Cir. R. 42-1 (9th Cir. Dec. 1, 2020). 12 Accordingly, 13 1. Plaintiffs motion for leave to defer payment of the filing fees under 28 U.S.C. 14 | § 1915(a)(3), construed as a request to proceed in forma pauperis under Federal Rule of 15 | Appellate Procedure 24(a)(4) (Doc. No. 24) is DENIED; 16 2. The Clerk of the Court is directed to forward a copy of this order to the Clerk for the 17 | United States Court of Appeals for the Ninth Circuit. 18 | IT IS SO ORDERED. sass - | Dated: _ August 6, 2021 DL A. Done 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28