Butler v. Onyejie et al

Filing 89

ORDER denying 88 Motion requesting Court Issue an Order on the Motion to Vacate signed by Magistrate Judge Michael J. Seng on 10/23/25015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERRY C. BUTLER,

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Plaintiff,
v.

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DR. O. ONYEJIE,
Defendant.

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Case No.: 1:11-cv-0723-MJS
ORDER DENYING MOTION REQUESTING
COURT ISSUE ORDER ON MOTION TO
VACATE
(ECF No. 88)

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Plaintiff Perry C. Butler (“Plaintiff”) is a former state prisoner proceeding pro se in this

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civil rights action pursuant to 42 U.S.C. § 1983. The parties have consented to Magistrate

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Judge jurisdiction. (ECF Nos. 32, 44.)

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On April 7, 2014, the Court dismissed the action based on Plaintiff's failure to file a

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pretrial statement. (ECF No. 88.) The Court ordered Plaintiff to file a pretrial statement on or

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before February 28, 2014. (ECF No. 79.) He failed to do so. The Court issued an order to

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show cause, directing Plaintiff to file by March 28, 2014 a pretrial statement or show cause

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why the case should not be dismissed. (ECF No. 83.) Plaintiff did not respond, and on April

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7, 2014, the Court dismissed the case.

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On August 13, 2015, Plaintiff filed a motion requesting the Court rule on his motion to

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vacate the Court's prior ruling. (ECF No. 88.) He asserts that the motion to vacate was filed
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on March 6, 2015, and has been pending for over 120 days. (Id.) The Court has no record of

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a motion to vacate being filed in this case in March, 2015. As the Court is not in possession

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of the motion to vacate it is unable to provide a ruling as requested by Plaintiff.

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Accordingly, the request for the Court to issue a ruling on the motion to vacate is

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denied without prejudice. Should Plaintiff desire the Court to vacate its dismissal of the

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complaint, he may prepare and file another motion to vacate, and the Court will address and

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rule on the motion at its earliest convenience.

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IT IS SO ORDERED.

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Dated:

October 23, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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