Beitch v. Burk

U.S. Court of Appeals for the Ninth Circuit January 17, 2003

Beitch v. Burk, 54 F. App'x 669 (9th Cir. 2003)

Opinion of the Court

MEMORANDUM **

Aaron Harvey Beitch appeals pro se the district court’s order denying his motion to proceed in forma pauperis. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam), and we vacate and remand.

The district court abused its discretion by instructing Beitch to complete an in forma pauperis application for prisoners *670when Beitch was no longer a prisoner and subsequently dismissing the action because he failed to properly complete the wrong application. See O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). Accordingly, we vacate the order denying the application to proceed in forma pauperis and remand to permit Beitch to complete the proper application.1

We deny Beitch’s motion filed September 23, 2002, for appointment of counsel.

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

. We note that after Beitch filed the notice of appeal, the district court entered an order vacating the appealed order and denying the original in forma pauperis application on an alternative ground. The district court lacked jurisdiction to enter the order because the filing of the notice of appeal divested the district court of jurisdiction over the matter appealed. See Moore v. Brewster, 96 F.3d 1240, 1246 (9th Cir. 1996).

Reference

Full Case Name: Aaron Harvey BEITCH v. BURK
Status: Published