Free Motion for Leave to Proceed in forma pauperis - District Court of California - California

Case 4:07-cv-01165-SBA

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LAW OFFICE OF DENNIS CUNNINGHAM

DENNIS CUNNINGHAM, SBN 112910 W. GORDON KAUPP, SBN 226141 115 ½ Bartlett Street San Francisco, California 94110 Telephone: (415) 285-8091 Facsimile: (415) 285-8092 Attorneys for Plaintiff WILLIAM HENRY COUSINS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION WILLIAM HENRY COUSINS, Case No. C-07-01165 SBA Plaintiff, v. BILL LOCKYER, (former) ATTORNEY GENERAL OF CALIFORNIA, in his individual capacity; RICHARD RIMMER (former) DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION (CDCR), in his individual capacity; ROSEANNE CAMPBELL (former) WARDEN OF MULE CREEK STATE (in her individual capacity); the CALIFORNIA DEPARTMENT OF JUSTICE (DOJ), the CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION (CDCR); the STATE OF CALIFORNIA; and JOHN/JANE DOES 1 THOUGH 20. Defendants. PLAINTIFF'S ADMINISTRATIVE MOTION TO PROCEED IN FORMA PAUPERIS (F.R.A.P. 24 & CIV.L.R. 7-11)

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Hon. Saundra Brown Armstrong

P LAINTIFF ' S A DMINISTRATIVE M OTION TO P ROCEED I N F ORMA P AUPERIS

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LAW OFFICE OF DENNIS CUNNINGHAM

INTRODUCTION Plaintiff, William Henry Cousins, brought suit against these defendants alleging violation of various of his federal constitutional and state law rights arising out of his wrongful incarceration over a period of approximately one year and seven months. The essence of plaintiff's allegations is that the defendants violated his rights by keeping him in custody after the lawful basis for his custody expired when the defendants, who knew or should have known that the basis for his custody expired, failed to fulfill their constitutional and common law duties by failing to take steps to effectuate his timely release. Specifically, defendants failed to contact the sentencing court so that his sentence could be immediately vacated. The defendants filed a motion to dismiss plaintiff's lawsuit on September 12, 2007 (Dkt. No. 13) arguing that prosecutorial and qualified immunity shielded these defendants from liability. After the plaintiff opposed and the defendants replied, and without a hearing on the matter, the Court dismissed plaintiff's lawsuit in its entirety by granting defendants' motion on October 31, 2007. (Dkt. No. 19). On November 1, 2007, this Court vacated the instant action. (Dkt. No. 20). Now Comes the plaintiff, who hereby moves this Court for an Order granting him In Forma Pauperis status. Plaintiff has been unemployed for one year and cannot afford to pay the filing fees to appeal this Court's decision, or any other fees or costs. ARGUMENT PLAINTIFF IS INDIGENT AND CANNOT PAY THE FILING FEE (OR ANY OTHER FEES OR COSTS) Federal Rule of Appellate Procedure 24 requires a party who wants to appeal in forma pauperis ("IFP") to file a motion in the district court. The motion must 1) attach the applicable form affidavit that expresses the party's inability to pay; state that the party's lawsuit includes a claim for entitlement to redress; and include a statement of the issues that the party intends to appeal. Attached, as Exhibit A to this Administrative Motion, is plaintiff's form 1
P LAINTIFF ' S A DMINISTRATIVE M OTION TO P ROCEED I N F ORMA P AUPERIS

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LAW OFFICE OF DENNIS CUNNINGHAM

Application (and affidavit) to Proceed In Forma Pauperis. Plaintiff has been unemployed for a little more than twelve months and is without the means to pay the appellate filing fee. Plaintiff's lawsuit seeks compensatory and punitive damages. Plaintiff seeks to appeal the District Court's Order granting the defendants' motion to dismiss and its findings that former Attorney General Bill Lockyer is entitled to prosecutorial immunity and that all the remaining defendants are entitled to qualified immunity. Plaintiff disputes both of these determinations and seeks to have them overturned so that he may pursue his claims for redress. CONCLUSION WHEREFORE, plaintiff respectfully requests that this Honorable Court 1. grant his motion to proceed on appeal in forma pauperis and grant him relief from paying for the filing fee pursuant to FRAP 24(a)(5); and 2. grant such further relief as the Court deems just and proper. A proposed order is attached. Respectfully Submitted, DATED: November 29, 2007 W. GORDON KAUPP DENNIS CUNNINGHAM Attorneys for William Henry Cousins

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By:_/s/ Gordon Kaupp________ GORDON KAUPP

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P LAINTIFF ' S A DMINISTRATIVE M OTION TO P ROCEED I N F ORMA P AUPERIS

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DENNIS CUNNINGHAM, SBN 112910 W. GORDON KAUPP, SBN 226141 115 ½ Bartlett Street San Francisco, California 94110 Telephone: (415) 285-8091 Facsimile: (415) 285-8092 Attorneys for Plaintiff WILLIAM HENRY COUSINS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION WILLIAM HENRY COUSINS, Plaintiff, v. BILL LOCKYER, (former) ATTORNEY GENERAL OF CALIFORNIA, in his individual capacity; RICHARD RIMMER (former) DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION (CDCR), in his individual capacity; ROSEANNE CAMPBELL (former) WARDEN OF MULE CREEK STATE (in her individual capacity); the CALIFORNIA DEPARTMENT OF JUSTICE (DOJ), the CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION (CDCR); the STATE OF CALIFORNIA; and JOHN/JANE DOES 1 THOUGH 20. Defendants. . DECLARATION OF ATTORNEY GORDON KAUPP IN SUPPORT OF PLAINTIFF'S ADMINISTRATIVE MOTION TO PROCEED IN FORMA PAUPERIS Case No. C-07-01165 SBA

I, GORDON KAUPP, declare: 1
D ECLARATION OF C OUNSEL

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1.

I am an attorney licensed to practice law throughout the State of California and

before this Honorable Court. I represent plaintiff William Henry Cousins in the above entitled action. If called as a witness, I would testify to the following from personal knowledge: 2. Attached hereto as Exhibit A is are true and correct copies of plaintiff's

application to proceed in forma pauperis. 3. I am informed and believe that plaintiff is indigent and lives hand to mouth in San

Leandro, despite the fact that he is able-bodied and has been seeking employment. I am informed and believe that plaintiff's sworn in forma pauperis declaration concerning his financial circumstances is accurate and complete, and that his financial circumstances are such that he cannot afford to pay for the filing fee. 4. I am informed and believe that plaintiff's Complaint in this action seeks

compensatory and punitive relief. 5. I swear under penalty of perjury under the laws of the State of California that the

foregoing is true and correct, except as to those matters stated on information or belief, and as to those matters, I believe them to be true. Executed at San Francisco, CA on November 29, 2007. /s/ Gordon Kaupp Gordon Kaupp

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D ECLARATION OF C OUNSEL

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DENNIS CUNNINGHAM, SBN 112910 W. GORDON KAUPP, SBN 226141 115 ½ Bartlett Street San Francisco, California 94110 Telephone: (415) 285-8091 Facsimile: (415) 285-8092 Attorneys for Plaintiff WILLIAM HENRY COUSINS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION WILLIAM HENRY COUSINS, Plaintiff, v. BILL LOCKYER, (former) ATTORNEY GENERAL OF CALIFORNIA, in his individual capacity; RICHARD RIMMER (former) DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION (CDCR), in his individual capacity; ROSEANNE CAMPBELL (former) WARDEN OF MULE CREEK STATE (in her individual capacity); the CALIFORNIA DEPARTMENT OF JUSTICE (DOJ), the CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION (CDCR); the STATE OF CALIFORNIA; and JOHN/JANE DOES 1 THOUGH 20. Defendants. [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS Case No. C-07-01165 SBA

Having read and considered "Plaintiff's Administrative Motion To Proceed In Forma Pauperis " and for good cause shown, the Court hereby GRANTS plaintiff's motion to proceed 1
P LAINTIFF ' S P ROPOSED O RDER G RANTING IFP S TATUS

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on appeal in forma pauperis. Plaintiff is relieved from paying the appeal filing fee.

IT IS SO ORDERED.

DATE: __________________

________________________________ Hon. SANDRA BROWN ARMSTRONG FOR THE U.S. DISTRICT COURT

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P LAINTIFF ' S P ROPOSED O RDER G RANTING IFP S TATUS

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Exhibit A

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