Love v. Yates et al

Filing 46

ORDER DENYING 45 Plaintiff's Motion for Stay of Proceedings signed by Magistrate Judge Barbara A. McAuliffe on 3/30/2012. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CARL R. LOVE,

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CASE NO. 1:10-cv-02304-BAM PC
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION FOR
STAY OF PROCEEDINGS

v.
(ECF No. 45)

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JAMES A YATES, et al.,
Defendants.
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Plaintiff Carl R. Love (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. On March 6, 2012, the Court issued an order

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dismissing certain claims and defendants and ordering Plaintiff to provide information within thirty

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days to identify the Doe Defendant. (ECF No. 38.) On March 21, 2012, Plaintiff filed a motion for

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reconsideration, which was denied on March 22, 2012. (ECF Nos. 39, 40.) Plaintiff filed a notice

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of appeal on March 28, 2012, appealing the order dismissing certain claims and defendants. (ECF

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No. 41.) On March 29, 2012, Plaintiff filed a motion seeking to stay this action pending resolution

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of his appeal. (ECF No. 44.)

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“When a Notice of Appeal is defective in that it refers to a non-appealable interlocutory

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order, it does not transfer jurisdiction to the appellate court, and so the ordinary rule that the district

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court cannot act until the mandate has issued on the appeal does not apply.” Nascimento v. Dummer,

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508 F.3d 905, 908 (9th Cir. 2007). The order Plaintiff is appealing is not immediately appealable.

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See State of California on Behalf of California Dep’t of Toxic Substances Control v. Campbell, 38

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F.3d 772, 776-77 (9th Cir. 1998) (“an order that adjudicates less than all claims” is not a final
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decision”); Branson v. City of Los Angeles, 912 F.2d 334, 335 (9th Cir. 1990) (order dismissing

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claim not immediately appealable because it “may be fully and effectively reviewed after final

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judgment”).

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Accordingly, Plaintiff’s motion for a stay is HEREBY DENIED.
IT IS SO ORDERED.
Dated:
10c20k

March 30, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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