Van Buren v. Waddle et al

Filing 76

ORDER DENYING AS MOOT 72 Plaintiff's Motion to Withdraw Notice of Appeal signed by Magistrate Judge Michael J. Seng on 1/17/2017. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 IRVIN VAN BUREN, 11 12 13 14 CASE NO. 1:14-cv-01894-DAD-MJS (PC) Plaintiff, ORDER DENYING AS MOOT PLAINTIFF’S MOTION TO WITHDRAW NOTICE OF APPEAL v. C. WADDLE, et al., (ECF No. 72) Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The case proceeds on Plaintiff’s first amended complaint (“FAC”) against Defendants Neibert, Ronquillo, and Walinga for excessive force under the Eighth Amendment and against Defendant Waddle for excessive force and failure to protect under the Eighth Amendment. (ECF No. 7.) Pursuant to an order dated October 11, 2016, Defendant Lesniak was terminated from the case. (ECF No. 63.) On November 7, 2016, Plaintiff filed a notice of appeal of the Court’s order. (ECF No. 69.) Now pending before the Court is Plaintiff’s November 30, 2016 motion to withdraw his notice of appeal as premature. (ECF No. 72.) However, on December 14, 2016, the Ninth Circuit Court of Appeals dismissed Plaintiff’s appeal for lack of jurisdiction. (ECF No. 73.) Judgment was entered on January 27 28 1 1 6, 2017. (ECF No. 75.) Accordingly, IT IS HEREBY ORDERED that Plaintiff’s instant 2 motion to withdraw his appeal is DENIED as moot. 3 4 5 IT IS SO ORDERED. Dated: January 17, 2017 /s/ 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael J. Seng 2

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