Thompson v. Kernan, et al.

Filing 123

ORDER Denying Plaintiff's Motion For A Ruling On Motion To Relax Rule 8 (ECF No. 122 ), signed by Magistrate Judge Barbara A. McAuliffe on 11/15/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TRAVIS RAY THOMPSON,

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CASE NO. 1:07-cv-00572-AWI-BAM PC

Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S MOTION FOR
A RULING ON MOTION TO RELAX RULE 8

KERNAN, et al.,

(ECF No. 122)
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Defendants.
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Plaintiff Travis Ray Thompson (“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. On July 12, 2012, the Ninth Circuit

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affirmed in part, reversed in part, and remanded this action for the Court to consider Plaintiff’s

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claims that accrued after he filed his initial complaint. (ECF No. 101.) On July 16, 2012, Plaintiff’s

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third amended complaint was dismissed, with leave to amend, for failure to comply with the Federal

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Rules of Civil Procedure. (ECF No. 104.) On August 8, 2012, the Ninth Circuit granted Plaintiff’s

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request for an extension of time to file a motion for a hearing en banc. (ECF No. 109.) On August

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10, 2012, Plaintiff filed a motion to relax the strict requirement of Rule 8. (ECF No. 110.) On

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August 23, 2012, this action was stayed pending resolution of Plaintiff’s petition for en banc review.

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Plaintiff was advised that he would be given a deadline for filing a fourth amended complaint once

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the mandate from the Ninth Circuit issues.

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The filing of a notice of appeal generally divests a district court of jurisdiction to determine

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the “substantial rights” at issue in an action during the pendency of the appeal. Pyrodyne Corp. v.

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Pyrotronics Corp., 847 F. 2d 1398, 1403 (9th Cir. 1988). In this instance, the order which is being
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appealed granted Defendants’ motion for summary judgment and this action was closed.

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Subsequently, the action was stayed due to the lack of jurisdiction to determine the “substantial

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rights” at issue during the pendency of the appeal .

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Since this action is stayed no motions shall be considered until Plaintiff’s appeal has been

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exhausted and the stay is lifted. Accordingly, Plaintiff’s motion for a ruling on the previously filed

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motion is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:
10c20k

November 15, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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