1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LEE SIMMS, Case No. 2:21-cv-0035-DJC-JDP (P) 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 JEFF LYNCH, 15 Respondent. 16 17 Petitioner, a state prisoner, brought this action under

. ECF No. 1. On 18 October 10, 2023, I recommended that petitioner’s petition be denied on the merits, ECF No. 36, 19 which the district judge adopted, ECF No. 38. The court entered judgment on December 1, 2023. 20 ECF No. 39. On February 24, 2025, petitioner filed an untimely appeal. ECF No. 43. Shortly 21 thereafter, he filed an application to proceed in forma pauperis.1 ECF No. 46. 22 Federal Rule of Appellate Procedure 24(a) provides that a party to a district court action 23 who desires to appeal in forma pauperis must file a motion in the district court with an attached 24 affidavit that shows “in detail” the party’s inability to pay, claims an entitlement to redress, and 25 states the issues the party intends to present on appeal. See Fed. R. App. P. 24(a)(1). If a party 26 was permitted to proceed in forma pauperis in the district court action, that party generally may 27

28 1 This matter was referred to the undersigned by the assigned district judge. ECF No. 47. 1 proceed on appeal without further authorization if the appeal is taken in good faith. Fed. R. App.

(a)(3). Since petitioner did not file his petition in forma pauperis and instead paid the filing 3 fee, he must make the requisite showing under Rule 24 to proceed in forma pauperis on appeal. 4 Petitioner’s in forma pauperis affidavit does not state either his claims or the issues he 5 intends to present on appeal, as required by Rule 24(a). See ECF No. 46. Instead, the application 6 solely addresses petitioner’s inability to pay the filing fee. A review of the docket does not reveal 7 what specific claims or issues petitioner intends to present on appeal. Despite petitioner’s 8 inability to pay the filing fee, he has failed to comply with the other requirements of Rule 24(a). 9 Thus, his motion should be denied. 10 Accordingly, it is RECOMMENDED that petitioner’s application to proceed in forma 11 pauperis, ECF No. 46, be DENIED. Should these recommendations be adopted, the Clerk of the 12 Court is directed to notify the U.S. Court of Appeals for the Ninth Circuit that this court certifies, 13 pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), that petitioner’s application to 14 proceed in forma pauperis has been denied and he must therefore seek further authorization from 15 the Court of Appeals pursuant to Federal Rule of Appellate Procedure Rule 24(a)(5) to obtain 16 leave to proceed in forma pauperis. See Fed. R. App. P. 24 Notes of Advisory Committee on 17 Rules – 1967. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of

(b)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 23 objections shall be served and filed within fourteen days after service of the objections. The 24 parties are advised that failure to file objections within the specified time may waive the right to 25 appeal the District Court’s order. Turner v. Duncan,

(9th Cir. 1998); Martinez 26 v. Ylst,

(9th Cir. 1991). 27 28 1 | 1718 SO ORDERED. 3 ( — Dated: _ March 24, 2025 ssn (ase 4 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 7 g 9 10 il 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28