Kemp v. Arpaio et al

Filing 115

ORDER: Magistrate Judge's Report and Recommendation 97 is accepted and adopted in part and is rejected in part as moot. Plaintiff's Motion for Permission to Appeal in Forma Pauperis 93 is denied as moot. Plaintiff's Rule 9(a)(2) Mo tion to Stay Substitution of Arpaio with Paul Penzone 88 is granted and that Sheriff Paul Penzone is substituted for defendant Arpaio only in his official capacity pursuant to Fed.R.Civ.P. 25(d), and that defendant Arpaio shall remain a defendant in this action in his personal capacity. Signed by Senior Judge Paul G Rosenblatt on 5/30/2017. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James L. Kemp,
Plaintiff,

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vs.
Joseph M. Arpaio, et al.,
Defendants.

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No. CV-15-01784-PHX-PGR (ESW)
ORDER

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Pending before the Court is Magistrate Judge Willett’s Report and

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Recommendation (Doc. 97), which concerns the plaintiff’s Motion for Permission to

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Appeal in Forma Pauperis (Doc.93) and his Rule 9(a)(2) Motion to Stay Substitution

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of Arpaio with Paul Penzone (Doc. 88).

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Recommendation de novo in light of Plaintiff’s Rule 72 Objections to Magistrate

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Judge Willett’s Report and Recommendation that Court Deny Plaintiff’s “Motion for

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Permission to Appeal in Forma Pauperis” (Doc. 106), the Court finds that the Report

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and Recommendation should be accepted in part and rejected in part as moot.

Having reviewed the Report and

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First, the Magistrate Judge’s recommendation that the Court deny the plaintiff

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request to appeal in forma pauperis and revoke his in forma pauperis status on

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appeal has been mooted by the Ninth Circuit’s subsequent issuance of its Mandate

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(Doc. 110), wherein it dismissed the plaintiff’s interlocutory appeal (Doc. 92) for lack

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of jurisdiction.

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Second, the Court concludes that the Magistrate Judge properly determined

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that the plaintiff’s Rule 9(a)(2) Motion to Stay Substitution of Arpaio with Paul

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Penzone be granted and that defendant Arapio should remain a defendant in this

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action in his personal capacity. Therefore,

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IT IS ORDERED that the Magistrate Judge’s Report and Recommendation
(Doc. 97) is accepted and adopted in part and is rejected in part as moot.
IT IS FURTHER ORDERED that the plaintiff’s Motion for Permission to Appeal
in Forma Pauperis (Doc.93) is denied as moot.

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IT IS FURTHER ORDERED that the plaintiff’s Rule 9(a)(2) Motion to Stay

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Substitution of Arpaio with Paul Penzone (Doc. 88) is granted and that Sheriff Paul

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Penzone is substituted for defendant Arpaio only in his official capacity pursuant to

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Fed.R.Civ.P. 25(d), and that defendant Arpaio shall remain a defendant in this action

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in his personal capacity.

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DATED this 30th day of May, 2017.

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