Free Order on Motion for Leave to Appeal in Forma Pauperis - District Court of Colorado - Colorado

Case 1:04-cv-00931-LTB-MJW

Document 113

Filed 08/16/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Lewis T. Babcock, Chief Judge Civil Action No. 04-cv-00931-LTB-MJW ERNEST STANTON, Plaintiff, v. YANCEY' FOOD SERVICE CORPORATION, S Defendant.

ORDER DENYING LEAVE TO PROCEED ON APPEAL PURSUANT TO 28 U.S.C. § 1915

Plaintiff Ernest Stanton has filed pro se on August 11, 2006, a " Prisoner' s Motion and Affidavit for Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24." Mr. Stanton is appealing to the United States Court of Appeals for the Tenth Circuit from the Judgment entered in this action on June 16, 2006. Mr. Stanton is a prisoner. He seeks leave to proceed on appeal without prepayment of fees or security therefor pursuant to 28 U.S.C. § 1915. In relevant part, § 1915 provides: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

Case 1:04-cv-00931-LTB-MJW

Document 113

Filed 08/16/2006

Page 2 of 3

Mr. Stanton does not allege that he is under imminent danger of serious physical injury. Therefore, the Court must determine whether Mr. Stanton has brought at least three actions or appeals in federal court while he was incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. For the purposes of this analysis, the Court may consider actions or appeals dismissed prior to the enactment of 28 U.S.C. § 1915(g). See Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996). Mr. Stanton has initiated three or more actions or appeals in a court of the United States while he was incarcerated or detained in any facility that were dismissed as frivolous, malicious, or for failure to state a claim. See Stanton v. Hickman, No. 95-cv-00874-DBS (D. Colo. June 6, 1995) (dismissed as legally frivolous); Stanton v. C. de Baca, No. 95-cv-00875­DBS (D. Colo. June 6, 1995) (dismissed as legally frivolous); Stanton v. Knight, No. 95-cv-00876-DBS (D. Colo. June 6, 1995) (dismissed as legally frivolous); Stanton v. Baxter, No. 95-cv-01389-DBS (D. Colo. June 6, 1995) (dismissed as legally frivolous); Stanton v. Dolton, No. 95-cv-01390DBS (D. Colo. June 6, 1995) (dismissed as legally frivolous), aff' No. 95-1294 (10th d, Cir. Apr. 18, 1996); Stanton v. Dolton, No. 95-cv-01408-DBS (D. Colo. June 6, 1995) (dismissed as legally frivolous). Therefore, § 1915(g) precludes Mr. Stanton from proceeding on appeal in the instant action without prepayment of fees or security therefor. The motion for leave to proceed in forma pauperis on appeal pursuant to § 1915 must be denied. Mr. Stanton may pursue his claims on appeal by tendering to the Court the required $455.00 filing fee. Accordingly, it is

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Case 1:04-cv-00931-LTB-MJW

Document 113

Filed 08/16/2006

Page 3 of 3

ORDERED that the " Prisoner' Motion and Affidavit for Leave to Proceed on s Appeal Pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24"filed on August 11, 2006, is denied pursuant to 28 U.S.C. § 1915(g). DATED at Denver, Colorado, this 16th day of August , 2006.

BY THE COURT:

s/Lewis T. Babcock Lewis T. Babcock, Chief Judge

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