Tyler v. Alameida, et al
Filing
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ORDER Denying 196 Plaintiff's Motion of Appeal of the District Court's Order Denying Plaintiff's Motion for Summary Judgment, signed by District Judge Lawrence J. O'Neill on 5/14/13. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ELONZA JESSE TYLER,
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Plaintiff,
v.
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DENNIS C. SMITH, et al.,
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Defendants.
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Case No.: 1:04-cv-06638-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION OF
APPEAL OF THE DISTRICT COURT’S ORDER
DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
(Doc. 196)
Plaintiff Elonza Jesse Tyler (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Following remand by the Ninth
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Circuit Court of Appeals, this action is proceeding against Defendant Smith for deliberate indifference
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in violation of the Eighth Amendment.
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On March 1, 2012, Plaintiff filed a motion for summary judgment. Following briefing, on
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February 25, 2013, the Magistrate Judge issued findings and recommendations that Plaintiff’s motion
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for summary judgment be denied. (ECF No. 189.) Plaintiff objected to the findings and
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recommendations. Following de novo review, the Court adopted the findings and recommendations in
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full on March 14, 2013. (ECF No. 191.)
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On March 26, 2013, Plaintiff filed a notice of appeal to the Ninth Circuit Court of Appeals.
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(ECF No. 192.) On April 25, 2013, the Ninth Circuit Court of Appeals dismissed the appeal for lack
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of jurisdiction. (ECF No. 195.) Thereafter, Plaintiff filed the instant motion entitled “Notice of
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Motion and Motion of Appeal of the District Court’s Order Denying Plaintiff’s Motion for Summary
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Judgment In Re: CV-06638-LJO-BAM.” (ECF No. 196.)
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Based on the motion, it appears that Plaintiff requests that this case to be heard by a three-
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judge court pursuant to 28 U.S.C. § 2284. Section 2284, Title 28 of the United States Code governs
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three-judge courts. Subsection (a) states in pertinent part: “A district court of three judges shall be
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convened when otherwise required by Act of Congress.” Plaintiff argues that his appeal of the Court’s
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order denying him summary judgment should be heard by a three-judge panel because he is a state
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prisoner and he is a member of the class action lawsuit Plata v. Brown, Jr., et al. Although he
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references Plata, Plaintiff cites to no Act of Congress indicating that his appeal of the order denying
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summary judgment on his deliberate indifference claim should be heard by a three-judge court.
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Accordingly, Plaintiff’s motion is HEREBY ORDERED denied.
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill
May 14, 2013
UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:
b9ed48bb
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