You are on page 1of 14

1

3 OLIVER B. MITCHELL III


4 622 WALL STREET
5 LOS ANGELES, CALIFORNIA 90014
6 (562) 719-3872
7 IN PRO PER
8

9
UNITED STATES COURT OF APPEALS

10 FOR THE NINTH CIRCUIT


11
OLIVER B. MITCHELL III, No. 17-56657
12
Plaintiff,

13 vs. MOTION TO APPEAL REVOCATION


OF IN FORMA PAUPERIS (IFP)
14 UNITED STATES DEPARTMENT OF STATUS
VETERANS AFFAIRS, et al.,
15 Defendant.
16

17 INTRODUCTION
18 On November 6, 2011, the Honorable Otis D. Wright II, issued an order revoking the
19 informa pauperis (IFP) status of Oliver B. Mitchell III, (Appellant) under section 28 U.S.C.
20 1915 (a) and 28 U.S.C. 753 (f). [Docket No. 140]

21 Subject to subsection (b), any court of the United States may authorize the

22 commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or

23 appeal therein, without prepayment of fees or security therefor, by a person who submits an

24
affidavit that includes a statement of all assets such prisoner possesses that the person is

25
unable to pay such fees or give security therefor. Such affidavit shall state the nature of the
action, defense or appeal and affiants belief that the person is entitled to redress. (2) A
26
prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding
27
without prepayment of fees or security therefor, in addition to filing the affidavit filed under
28
paragraph (1), shall submit a certified copy of the trust fund account statement (or
institutional equivalent) for the prisoner for the 6-month period immediately preceding the

1
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 filing of the complaint or notice of appeal, obtained from the appropriate official of each

4
prison at which the prisoner is or was confined. (3) An appeal may not be taken in forma

5
pauperis if the trial court certifies in writing that it is not taken in good faith. See 28 U.S.
Code 1915 - Proceedings in forma pauperis
6
Each reporter may charge and collect fees for transcripts requested by the parties,
7
including the United States, at rates prescribed by the court subject to the approval of the
8
Judicial Conference. He shall not charge a fee for any copy of a transcript delivered to the
9
clerk for the records of court. Fees for transcripts furnished in criminal proceedings to
10
persons proceeding under the Criminal Justice Act (18 U.S.C. 3006A), or in habeas corpus
11
proceedings to persons allowed to sue, defend, or appeal in forma pauperis, shall be paid by
12
the United States out of moneys appropriated for those purposes. Fees for transcripts
13
furnished in proceedings brought under section 2255 of this title to persons permitted to sue
14
or appeal in forma pauperis shall be paid by the United States out of money appropriated for
15
that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous
16
and that the transcript is needed to decide the issue presented by the suit or appeal. Fees for
17
transcripts furnished in other proceedings to persons permitted to appeal in forma pauperis
18
shall also be paid by the United States if the trial judge or a circuit judge certifies that the
19
appeal is not frivolous (but presents a substantial question). The reporter may require any
20
party requesting a transcript to prepay the estimated fee in advance except as to transcripts
21
that are to be paid for by the United States. See 28 U.S. Code 753 (f) Reporters
22
BACKGROUND
23 On August 16, 2013, the Appellant lodged a civil rights complaint pursuant to 42
24 U.S.C. 1983 (non-prisoners) and was assigned Case No. CV-13-6030.
25 On September 26, 2013, the Court filed and accepted the Appellants civil rights
26 complaint (non-prisoners) and was assigned Case No. CV-13-6030-ODW-CWx.
27 On December 12, 2013, Federal District Judge Otis D. Wright issued Order Vacating
28 Reference to Magistrate Judge saying Reference to the discovery Magistrate Judge is
hereby vacated. The above case is referred to a Magistrate Judge pursuant to General Order

2
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 05-07 for a Report and Recommendation. [Docket No. 12]

4
While the Appellant respects the Courts opinion the Appellant disagrees with the Order

5
Vacating Counsel. Most if not all 194 cases are denied the rights to withhold consent to have
their case heard by a U.S. District Judge. All 194 cases are denied a jury trial, a discovery
6
phase. Most if not all 194 cases are forced into mandatory alternative dispute resolution at
7
which time even more constitutional rights can be stripped away.
8
On December 17, 2013, Magistrate Judge Carla Woehrle issued Civil Minutes-
9
General saying Because Plaintiff is seeking to proceed in forma pauperis his complaint is
10
subject to screening under 28 U.S.C. 1915(e) (2). If and when the court determines that the
11
complaint passes screening, the court will issue orders regarding marshals service on its own
12
motion. [Docket No. 16]
13
On January 21, 2014, the Court issued Memorandum and Order Dismissing
14
Complaint with Leave to Amend saying Plaintiff Oliver B. Mitchell III opened this action
15
with a request to proceed without prepayment of the filing fee dated and filed August 16,
16
2013. [Docket No. 1.] Leave to file was granted and Plaintiffs Complaint was filed
17
September 26, 2013. [Docket No. 3.] Plaintiff is appearing pro se and seeking to proceed in
18
forma pauperis, on a civil rights complaint under 42 U.S.C. 1983. For reasons stated below,
19
the complaint is dismissed with leave to amend. Complaints such as Plaintiffs are subject to
20
the courts sua sponte review under provisions of the Prison Litigation Reform Act of 1995
21
(PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996). The court shall dismiss such a
22
complaint, at any time, if the court finds that it (1) is frivolous or malicious, (2) fails to state a
23 claim on which relief may be granted, or (3) seeks monetary relief from a defendant immune
24 from such relief. A claim is frivolous when it is without basis in law or fact, and malicious
25 when it is filed with the intention or desire to harm another. Failure to state a claim has the
26 same meaning on PLRA review that it has in review of a motion to dismiss under Fed. R. Civ.
27 P. 12(b)(6). Plaintiff makes lengthy but vague allegations that the VA and VA employees have
28 harassed him in numerous ways, violating his federal civil rights under 42 U.S.C. 1983 and
other statutes. He seeks monetary damages. Here, Plaintiffs 1983 claims are asserted

3
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 against a federal agency and three of its employees. However, a federal agency and federal

4
employees acting under color of federal law are not persons acting under color of state law

5
who may be sued under 42 U.S.C. 1983. Accordingly, all of Plaintiffs 1983 claims are
subject to dismissal on PLRA screening. Plaintiff has made allegations about individual acts
6
by Defendant Holliday, but his factual allegations, as they stand, do not show that Defendant
7
Holliday violated any of his constitutional rights. On the other hand, Plaintiff might be able
8
successfully to amend his complaint, consistently with his factual allegations, to state a
9
Bivens claim against Defendant Holliday. In light of the liberal policy toward amendment of
10
pro se pleadings, Plaintiff will be given leave to amend his complaint to state a Bivens claim,
11
for violation of a federal constitutional right, against Defendant Holliday in an individual
12
capacity only. If Plaintiff files an amended complaint, the court will issue further orders as
13
appropriate; if not, the magistrate judge will recommend that this action be dismissed,
14
without prejudice, for failure to prosecute or to comply with court orders, as well as for the
15
reasons stated above. [Docket No. 24]
16
On April 14, 2014, the Plaintiff filed Notice to the Court saying Complaints such as
17
plaintiffs are not subject to the Courts sua sponte review under provisions of the PLRA of
18
1995. The PLRA is a group of statutory provisions, codified in scattered sections of Title 18,
19
28, and 42 of the United States Code designed to impose strict conditions on court filings by
20
incarcerated persons, especially those filing suit via in forma pauperis (poor person) status.
21
[Docket No. 33]
22
On November 18, 2014, the Court issued Memorandum and Order Dismissing First
23 Amended Complaint with Leave to Amend saying Plaintiffs First Amended Complaint
24 (FAC) was filed March 12, 2014 [Docket No. 30], and is dismissed, with leave to amend,
25 for reasons stated below. Complaints such as Plaintiffs are subject to the courts sua sponte
26 review under provisions of the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No.
27 104-134, 110 Stat. 1321 (1996). Most of Plaintiffs remaining claims appear to be barred
28 either by lack of jurisdiction (e.g. to bring claims based on federal criminal statutes) or by the
doctrine of federal sovereign immunity (such as a claim under the Rehabilitation Act). It is

4
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 not clear what, if any, cognizable claims Plaintiff could state on amendment; however, in light

4
of the liberal policy on amending pro se pleadings, he will be given leave to amend his

5
complaint one more time. He may, for example, be able to state a claim under Title VII.
[Docket No. 36]
6
On January 6, 2015, the Court issued Civil Minutes-General saying Plaintiffs
7
Second Amended Complaint (SAC) was filed on December 22, 2014. [Docket No. 40.] In
8
the SAC, Plaintiff asserts a claim for violation of Title VII of the Civil Rights Act of 1964, as
9
amended, 42 U.S.C. 2000e et seq., against the Secretary of the United States Department
10
of Veterans Affairs. The court ORDERS as follows in light of the SAC: 1. By filing the SAC
11
Plaintiff has effectively dismissed the previously named Defendants not named in the SAC:
12
the United States Department of Veterans Affairs, Donna Beiter, and Lisa K. Holliday. The
13
clerk shall correct the docket to show that this action has been terminated with respect to
14
those Defendants. 2. Under Fed. R. Civ. P. Rule 25(d), Robert A. McDonald, the current
15
Secretary of Veterans Affairs, is substituted as a Defendant in place of former Secretary Eric
16
K. Shinseki. 3. Plaintiff is granted leave to proceed in forma pauperis. 4. By separate order,
17
the court will direct the United States Marshal to serve the summons and complaint on
18
Secretary McDonald in his official capacity only. [Docket No. 41]
19
DISCUSSION
20
Appellant, Oliver B. Mitchell III, opened this action with a request to proceed without
21
prepayment of the filing fee dated and filed August 16, 2013. [Docket No.1] Leave to file was
22
granted and Appellants complaint was filed on September 26, 2013. [Docket No. 3]
23 Complaints such as appellants are [n]ot subject to the courts sua sponte review under
24 provisions of the PLRA of 1995. The Prison Litigation Reform Act of 1995 is a group of
25 statutory provisions, codified in scattered sections of Title 18, 28, and 42 of the United States
26 Code designed to impose strict conditions on court filings by incarcerated persons, especially
27 those filing suit via in forma pauperis (poor person) status.
28 Pursuant to 28 U.S.C 1915 A, a federal district court is required, before docketing, if
feasible, to review any complaint in a civil action in which a prisoner seeks redress from a

5
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 government entity or officer or employee of any government entity. In this instant action, the

4
Appellant is [n]ot a prisoner or an incarcerated person. The district court has chosen on its

5
own merit to improperly screen the Appellants complaint under 28 U.S.C. 1915 (e)(2)(B) and
1915A(b).
6
In forma pauperis proceedings are authorized in federal courts by 28 U.S.C. 1915. The
7
two-step process requires first a determination of whether the Plaintiff qualifies by economic
8
status and second a determination of whether the cause of action is frivolous or malicious.
9
See Martin-Trigona v. Stewart, 691 F.2d 856 (8th Cr. 1982). The statue divides civil plaintiffs
10
into two categories, those who are prisoners and those who are not. For non-prisoner parties
11
the process to initiate an in forma pauperis authorization is similar to that in state court. If
12
informa pauperis status is granted, the officers of the court shall serve all process, and
13
perform all duties in such cases. See 28 U.S.C. 1915 (d).
14
The purpose of informa pauperis status is to determine if the person is indigent or a
15
poor person. Once the court grants in forma pauperis the statue allows for the person to have
16
all necessary process and proceedings as in other cases. In forma pauperis waives the cost of
17
filing fees, provides personal service attempts, service by publication, related cost, transcripts
18
and legal files requested to pursue appeals on behalf of indigent clients. The court cannot
19
selectively apply or willfully, intentionally apply the wrong rule on its own motion.
20
Under 28 U.S.C. 1915A (c) states the definition of the term prisoner to mean any
21
person incarcerated or detained in any facility who is accused of, convicted of, sentenced for,
22
or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,
23 probation, pretrial release, or diversionary program.
24 Again, the Appellant in this case is not a prisoner or incarcerated person and the court
25 has failed to apply the correct statue when revoking IFP status.
26 The appellant brought this action, Pro Se, for compensatory and punitive damages for
27 violations of international and domestic law. The appellant brought this action against the
28 defendants for their responsibility for the torture, cruel, inhumane or degrading treatment or
punishment, extrajudicial punishment, attempted extrajudicial killing, arbitrary detention,

6
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 forced re-location, non-consensual research and experimentation, and war crimes and crimes

4
against humanity against Appellant Oliver B. Mitchell III.

5
On August 15, 2013, the Department of Veterans Affairs, Office of Resolution
Management, wrote the Appellant saying You have the right to file a civil action in an
6
appropriate United States District Court.
7
On April 18, 2014, Carlton M. Hadden, Director, Office of Federal Operations, U.S.
8
Equal Employment Opportunity Commission, wrote the Appellant saying On November 1,
9
2013, Complainant filed an appeal with the Equal Employment Opportunity Commission
10
(EEOC or Commission) from a FINAL AGENCY DECISION (FAD) dated March 15, 2013,
11
dismissing his complaint of unlawful employment discrimination in violation of Title VII of
12
the Civil Rights Act of 1964 On January 21, 2014, the District Court dismissed the civil
13
action, with leave to amend. It reasoned in part the complaint did not state a claim under 42
14
U.S.C. 1983. Thereafter, on March 12, 2014, Complainant filed an amended civil action
15
complaint, alleging, in part, violations of Title VII and the Rehabilitation Act regarding issues
16
1-6 above, writing that some of employment claims were also raised in administrative case
17
200P-0691-2013-102672 and accepted, and referring to his withdrawing this administrative
18
complaint and requesting that the withdrawal be rescinded. The Courts computerized docket
19
reveals that as of April 15, 2014, the civil action is still pending. You have the right to file a
20
civil action, and if you do not have or cannot afford the services of an attorney, you may
21
request from the Court that the Court appoint an attorney to represent you and that the Court
22
also permit you to file the action without prepayment of fees, cost, or other security..."
23 On November 18, 2014, the Court issued "Memorandum and Order Dismissing First
24 Amended Complaint with Leave to Amend" saying "Plaintiff's First Amended Complaint
25 ("FAC") was filed March 12, 2014 [Docket No. 30], and is dismissed, with leave to amend,
26 for reasons stated below. Complaints such as Plaintiffls are subject to the court's sua sponte
27 review under provisions of the Prison Litigation Reform Act of 1995 ("PLRA."), Pub. L. No.
28 104-134, 110 Stat. 1321 (1996). Most of Plaintiff s remaining claims appear to be barred
either by lack of jurisdiction (e.g. to bring claims based on federal criminal statutes) or by the

7
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 doctrine of federal sovereign immunity (such as a claim under the Rehabilitation Act). It is

4
not clear what, if any, cognizable claims Plaintiff could state on amendment; however, in

5
light of the liberal policy on amending pro se pleadings, he will be given leave to amend his
complaint one more time. He may, for example, be able to state a claim under Title VII.
6
ARGUMENT
7
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or
8
state cannot commit a legal wrong and is immune from civil suit or criminal prosecution. It is
9
a principle of international law which exempts a sovereign state from the jurisdiction of
10
foreign national courts. Sovereign immunity is based on the concept of sovereignty in the
11
sense that a sovereign may not be subjected without its approval to the jurisdiction of another
12
sovereign. The courts of a country will not impede a foreign sovereign, that is, they will not
13
by their process make him against his will a party to legal proceedings whether the
14
proceedings involve process against his person or seek to recover from him specific properly
15
or damages. The law of sovereign immunity connotes that a state, unless it chooses to waive
16
its immunity, is immune to the jurisdiction of foreign courts and the enforcement of court
17
orders. It also precludes the assertion of jurisdiction by the national courts of a foreign
18
country over a sovereign or state, without the Tatter's consent. There are two forms of
19
sovereign immunity:
20
Immunity from suit (also known as immunity from jurisdiction or adjudication), and
21
Immunity from enforcement.
22
Immunity from suit means a state is immune from the jurisdiction of another state in
23 its courts. Immunity from enforcement means that even if a state successfully brings another
24 state to court and wins in the case, the judgment cannot be enforced. However, sovereign
25 immunity of a state entity may be waived. A state entity may waive its immunity by:
26 Prior written agreement,
27 instituting proceedings without claiming immunity,
28 submitting to jurisdiction as a defendant in a suit, and
intervening in or taking any steps in any suit (other than for the purpose of claiming

8
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 immunity). In constitutional monarchies the sovereign is the historical origin of the authority

4
which creates the courts. Thus the courts had no power to compel the sovereign to be bound

5
by the courts, as they were created by the sovereign for the protection of his or her subjects.
This principle is commonly expressed by the popular legal maxim rex non potest peccare,
6
meaning "the king can do no wrong."
7
Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321
8
71, as amended, 42 U.S.C. 1997e et seq., in 1996 in the wake of a sharp rise in prisoner
9
litigation in the federal court system. The PLRA contains a variety of provisions designed to
10
bring prisoner litigation under control.
11
The PLRA changed various provisions of the United States Code that address civil
12
rights complaints and in forma pauperis proceedings. However, substantial case law has
13
demonstrated that the PLRA was designed by congress to make it harder for prisoners,
14
indigents and poor people to have equal access to the federal courts.
15
The Appellant in this case is not an incarcerated person(s).
16
Despite the district courts attempt to prosecute this case under the PLRA. The
17
Appellant submits that the Court itself has violated the PLRA. At the time of filing the
18
Appellant clearly and concisely demonstrated "imminent danger of serious physical injury."
19
Under the PLRA the Court is to assess the threats at the time of filing suit or when the
20
prisoner or non-prisoner makes an in forma pauperis application in the district court or on
21
appeal. Any credible allegation of imminent danger of serious physical injury meets the
22
statutory requirement, however, in this instance the Court has all but dismissed the allegations
23 as incredible or insubstantial. If serious allegations are disputed, the court may hold a hearing
24 or rely on affidavits and depositions to resolve the question. Some courts, however, seem just
25 to have made ad hoc judgments about the credibility of the prisoner's claim based on no more
26 than the pro se complaint's allegations, sometimes supplemented by the prisoner's response to
27 an order to show cause or objections to a magistrate judge s report. The district court has
28 seemingly rejected the substantial allegations of threat of injury, and have conflated the
imminent danger inquiry with the merits of the Appellants legal claim. To meet the "serious

9
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 physical injury" requirement, the threatened injury need not be as serious as to be an Eighth

4
Amendment violation in and of itself. The risk of future injury is sufficient to invoke the

5
imminent danger exception.
As evinced in the Appellants initial and subsequent amended complaints, the Appellant
6
raised several claims of "imminent danger" to include: (1) In or around the summer of 2012
7
the Appellant and VA employee Lisa Worthington (White female) engaged in conversation
8
while in her office she stated "we need to get you out of here." Referring to Appellants legal
9
state of residence of Mobile, Alabama. (2) In or around the summer of 2012 the Appellant and
10
VA employee Lisa Worthington engaged in conversation while in her office she stated "are
11
you two the only ones that know. (Referring to Appellants prior protected activity and
12
whistleblower complaint against the VA.) (3) In or around the summer of 2012 the Appellant
13
and VA employee Lisa Worthington engaged in conversation while in her office she stated I
14
bet you wont do that again. (Referring to Appellants prior protected activity and
15
Whistleblowing complaint.) (4) On or around January 16, 2013 through telephone
16
conversation a VA employee named Gwen Pride (Black female) stated when he kills you,
17
make sure you leave it in your will he did it, then hung up. (Referring to Plaintiffs domestic
18
partner) (5) On March 4, 2013 through telephone conversation a VA employee named Lisa
19
Worthington confirms Appellants suspicions and allegations that the Department of Veterans
20
Affairs willfully and intentionally gave the Appellant a virus with the intent to inflict pain and
21
suffering and cause end of life. (6) On March 4, 2013 through telephone conversation a VA
22
employee named Lisa Worthington states the USA and Department of Veterans Affairs
23 would kill Appellant in a drone attack. (7) On March 4, 2013 through telephone conversation
24 a VA employee named Lisa Worthington states nobody knows you, no one knows who you
25 are, whose gonna miss you. (8) On April 4, 2013 through telephone conversation a VA
26 employee named Lisa Worthington stated you know what I dont know, I dont see how it
27 could because they keep dragging it out, they keep pulling you in, I mean theyre not letting
28 you go. Weve talked about it before, they want to get rid of those other people that did it but
they gotta use you to be the one that can justify, that can give them the evidence they need to

10
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 get rid of those people I guess, why pull you in unless they wanna pull you in to get rid of you

4
because you knew it but then if its all put out in public so what, why hurt you, why get rid of

5
you, its gonna be known anyway.

6
Another act and/or admission of imminent danger is evinced when on March 4, 2013

7 through telephone conversation with VA employee Lisa Worthington states You see why the

8 whole thing is almost like its separate its almost I dont know I wish I knew. I mean Ive

9 never had problems like this ever. And I still cant get into medical records because I keep

10 thinking when they finally give me that access you know maybe I could get in there and start
11 playing around see if I could find Then again what if Im looking at yours and they go
12 wait a minute why is she looking at his stuff is she part of this?
13 Upon closer review the Plaintiff examined 100 plus pages of medical records obtained
14 from the Defendants to include the Social Security Administration that substantiates the
15 allegations of non-consensual research to include the illegal placement of a bio-medical
16 marker capable of data collection, human subject research, surveillance, behavior
17 modification, and many other applied uses. The Plaintiff asserts through discovery and trial,

18 to include medical experts and documents that the Defendants indeed violated the Plaintiffs

19 right to life, liberty and pursuit of happiness by illegally implanting the Plaintiff for crimes

20
rooted in illegality. In FACT the Plaintiff has obtained evidence that the Defendants have

21
engaged the Plaintiff in drug trials that are consistent with the findings in a Report to the
Ranking Member, Committee on Homeland Security and Governmental Affairs, U.S.
22
Senate, Report No. GAO-13-358, Titled Prescription Drugs, Comparison of DOD and VA
23
Direct Purchase Prices.
24
Additionally, the Appellant through discovery and trial will demonstrate that the
25
Defendants have violated protocols as evinced in a report to the Chairman, Subcommittee on
26
Oversight and Investigations, Committee on Energy and Commerce, House of
27
Representatives, Report No. GAO-HRD-86-56, Titled Drug Company Sponsored Research
28
at VA Medical Facilities.
Again, despite the Appellants well pleaded FACTS the district court on its own motion

11
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 has committed fraud upon the judiciary by screening the complaint under the PLRA but

4
failing to recognize the imminent danger listed in the complaint. Whereas the district court

5
itself has placed the Appellant in harms way.
Is the Court waiting for the Appellant to die?
6
Civil complaints brought by indigent non-prisoners in the district court differ from
7
civil cases brought by indigent prisoners. Like prisoners, a non-prisoner seeking pauper
8
status in the district court must file an affidavit listing all of his or her assets. Therefore,
9
indigent non-prisoners seeking pauper status, regardless of whether they are represented by
10
counsel, must file Form 4 from the Appendix of Forms located in the Federal Rules of
11
Appellate Procedure, or an affidavit which contains the same information found in Form 4.
12
Once the affidavit is filed, a pauper determination may be made.
13
Again, in this case the Appellant is not a prisoner or incarcerated person.
14
The screening provisions of the Prison Litigation Reform Act have been held not to
15
deny due process, equal protection, or the right of access to the courts. Yet, seemingly, the
16
district court has done so with intent.
17
In this instance the Defendants are not immune from prosecution, whereas, the state
18
waived its sovereign immunity when on August 15, 2013, the State (U.S. Equal Employment
19
Opportunity Commission) issued a notice of right to sue.
20
CONCLUSION
21
In this instant action, the Appellant has been denied the opportunity to a meaningful
22
hearing or to even be heard. The Appellant asserts that deprivation of constitutional protection
23 or court action for the purpose of intimidating him from exercising his opinion via court
24 orders is acting ultra-vires.
25 In this instant action, the Appellant asserts that the district court has abused its ability
26 to dismiss actions based on bias and prejudice.
27 This action was filed on August 16, 2013 and has been ongoing for 4 years and 3
28 month without a motion for discovery or set for trial. The present dispute is the latest in a
series of disputes between the parties. The procedural posture of the district court to include

12
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 the Department of Justice and the defendants has offensively limited the Appellants ability to

4
fairly prosecute this case.

5
The Appellant has fully complied with the Courts orders.
It has been the district court itself which has issued and acted ultra vires.
6
Given the allegations contained, from deprivation of civil rights, to imminent danger,
7
to conspiracy to commit murder, to biological, radiological, chemical and genetic research, in
8
which the Court must presume to be true and which hopefully should be undisputed, as well
9
as the totality of the facts, it would appear that dismissal of this action would conclude that
10
bias exists in this case.
11
The Appellant has demonstrated a clear violation of his constitutional rights and the
12
ensuing chilling effect by the defendants. This Constitutional argument must be heard by the
13
court because it is a Constitutional argument and cannot be heard at an administrative level.
14
The administrative rules and procedures do not apply when the constitutionality of the federal
15
agencys regulations come into question.
16
The sua sponte denial of Appellants due process rights and the gutting of their case
17
has proven to be too harsh of a sanction for the motion and supporting evidence submitted.
18
The district courts recommended dispositive motion on the basis of it being frivolous and
19
without merit despite the lack of discovery by the parties without notice of hearing or due
20
process as is required.
21
WHEREFORE, for reasons as stated above, the Appellant RESPECTFULLY request
22
that this Court, the Ninth Circuit of Appeals VACATE revocation of IFP status and remand
23 for further proceedings consistent with Courts orders.
24 Executed on November 12, 2017 at Los Angeles, California.
25

26 OLIVER B. MITCHELL III


27 622 WALL STREET
28
LOS ANGELES, CALIFORNIA 90014
(562) 719-3872

13
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657
1

3 IN PRO PER

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14
MOTION TO APPEAL REVOCATION OF IN FORMA PAUPERIS (IFP) STATUS No. 17-56657