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Gerald Lewis Austin, #A1076082 v. Corr'l Officer Van Winlke

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII


February 24, 2012

GERALD LEWIS AUSTIN, #A1076082, PLAINTIFF,
v.
CORR'L OFFICER VAN WINLKE, ET ) AL., DEFENDANTS.

The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER DENYING MOTION TO EXTEND TIME TO APPEAL AND REVOKING IN FORMA PAUPERIS STATUS

On November 29, 2011, the court dismissed pro se plaintiff Gerald Lewis Austin's prisoner civil rights complaint for failure to state a claim. See ECF #5. Plaintiff was granted leave to amend to cure the complaint's pleading deficiencies.

Id. Plaintiff was proceeding in forma pauperis. See ECF #4. On December 12, 2011, Plaintiff submitted a first amended complaint. ECF #6.

Plaintiff's amended complaint was virtually identical to the original Complaint, and did not address any of the court's noted deficiencies. See id. On December 20, 2011, the court dismissed the first amended complaint and action for Plaintiff's failure to state a claim or cure the original complaint's deficiencies. ECF #8. Judgment was entered that day. ECF #9.

On February 15, 2012, Plaintiff submitted a letter, dated February 13, 2012, to the Clerk of Court.*fn1 Plaintiff explains that he intends to file a notice of appeal in this action in approximately one week and seeks an extension of time to do so, so that he can make copies of his documents and resubmit an in forma pauperis application. See ECF #10. The court construes Plaintiff's letter as a motion to extend time to appeal. On February 21, 2012, Plaintiff submitted a new in forma pauperis application. See ECF #13.

I. Plaintiff's Motion for Extension of Time

The deadline for filing a notice of appeal in this action was January 19, 2012. See Fed. R. App. 4(a)(1). That date can be extended until February 18, 2012, under Rule 4(a)(5), if the court construes Plaintiff's February 15, 2012 letter as a motion for an extension of time, and if Plaintiff's motion shows excusable neglect or good cause. See Fed. R. App. P. 4(a)(5).

Plaintiff, however, provides no adequate explanation showing good cause or excusable neglect for extending the time to appeal. See Fed. R. App. 4(a)(5)(A)(ii). To the contrary, Plaintiff's recent activity in this court suggests otherwise. Plaintiff has filed numerous actions, motions, amended pleadings, letters, exhibits, and appeals in his recently filed cases, yet provides no explanation or justification to extend the time to appeal in this case.*fn2 Plaintiff does not explain why he needed to make copies of his documents to perfect his appeal, or why he was unable to do so. Plaintiff is not required to file a new in forma pauperis application prior to filing his notice of appeal. Further, Plaintiff does not explain the basis for his appeal in this action or otherwise substantiate good cause for extending the time to appeal. Plaintiff's motion to extend the time to appeal is DENIED.

II. Plaintiff's In Forma Pauperis Status

In light of Plaintiff's recent litigation history, and the insubstantial nature of his claims in this case, combined with his failure to provide any basis for this appeal, the court finds that any appeal here is frivolous and would not be taken in good faith. See 28 U.S.C. § 1915(a)(3). As such, Plaintiff's in forma pauperis status in this action is REVOKED. To the extent Plaintiff's recent IFP application is intended as a request for IFP status on appeal, it is DENIED without prejudice to Plaintiff's seeking such status with the appellate court if that court rules that Plaintiff may appeal.

III. Conclusion

Plaintiff's February 15, 2012 letter is construed as a Motion for Extension of Time to Appeal and is DENIED. Because this court finds that any appeal in this action would be frivolous and not taken in good faith, Plaintiff's in forma pauperis status is REVOKED. In forma pauperis on appeal is DENIED.

IT IS SO ORDERED.

Susan Oki Mollway


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