White et al v. Valarie

Filing 67

ORDER CONSTRUING Plaintiff's Document Filed on September 23, 2013, as a Notice of Appeal, in Compliance With the Ninth Circuit's Order of October 22, 2013 in Appeal No. 13-16718 55 , 60 ; ORDER VACATING Findings and Recommendation on Nove mber 8, 2013 as Moot 61 ; ORDER for Clerk to: (1) Reflect Notice of Appeal on Court Docket 60 ; (2) Forward Notice of Appeal to Ninth Circuit 60 ; (3) Serve a Copy of This Order on the Ninth Circuit, signed by Magistrate Judge Gary S. Austin on 12/6/13. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HORTENSE WHITE,

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Plaintiff,

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1:13-cv-00157-AWI-GSA-PC
ORDER CONSTRUING PLAINTIFF’S
DOCUMENT FILED ON SEPTEMBER 23,
2013, AS A NOTICE OF APPEAL, IN
COMPLIANCE WITH THE NINTH
CIRCUIT’S ORDER OF OCTOBER 22,
2013 IN APPEAL NO. 13-16718
(Docs. 55, 60.)

vs.
TRENONE VALARIE, et al.,

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Defendants.

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ORDER VACATING FINDINGS AND
RECOMMENDATION ISSUED ON
NOVEMBER 8, 2013 AS MOOT
(Doc. 61.)

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ORDER FOR CLERK TO:

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(1) REFLECT NOTICE OF APPEAL ON
COURT DOCKET (Doc. 60);

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(2) FORWARD NOTICE OF APPEAL
TO NINTH CIRCUIT (Doc. 60);

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(3) SERVE A COPY OF THIS ORDER
ON THE NINTH CIRCUIT

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I.

BACKGROUND

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Hortense White (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. This case was dismissed on August
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30, 2013, with prejudice, for failure to state a claim upon which relief may be granted under §

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1983, and judgment was entered on August 30, 2013. (Docs. 53, 54.)

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On October 22, 2013, the Ninth Circuit issued an order dismissing Plaintiff’s Appeal

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No. 13-16718. (Doc. 55.) In the order, the Ninth Circuit directed its Clerk to “transmit

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appellant’s response to this court’s September 11, 2013 order to show cause, received in this

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court on September 23, 2013, to the district court for filing as a notice of appeal from the final

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judgment entered in the district court on August 30, 2013.” (Id.)

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The district court received appellant’s response from the Ninth Circuit’s Clerk on or

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about November 6, 2013 and filed it on September 23, 2013. (Doc. 60.) However, the district

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court inadvertently construed the document as a Motion for Extension of Time to File an

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Appeal.

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recommending that Plaintiff’s Motion for Extension of Time be denied. (Doc. 61.)

(Id.)

On November 8, 2013, the court issued findings and a recommendation,

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Discussion

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The district court now recognizes that, pursuant to the Ninth Circuit’s order of

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September 11, 2013, the document filed on September 23, 2013, Document 60 on the district

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court’s docket, should have been construed as a Notice of Appeal. Therefore, the court shall

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now construe Document 60 as a Notice of Appeal, and the Clerk shall be directed to forward

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the Notice of Appeal to the Ninth Circuit for processing.

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In light of the fact that Document 60 is now construed as a Notice of Appeal, the

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findings and recommendation issued on November 8, 2013, are moot and shall be vacated.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Pursuant to the Ninth Circuit’s order of September 11, 2013 in Appeal No. 13-

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16718, the document filed as Document 60 at the district court on September 23, 2013 is now

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construed as a Notice of Appeal by Plaintiff from the final judgment entered in the district court

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on August 30, 2013;

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///

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///
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2.

The Clerk is directed to reflect on the court’s docket that Document 60 is now

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construed as a Notice of Appeal, forward the Notice of Appeal to the Ninth

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Circuit for processing, and serve a copy of this order on the Ninth Circuit; and

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3.

The Findings and Recommendation issued on November 8, 2013, are

VACATED as moot.

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IT IS SO ORDERED.
Dated:

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December 6, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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