Brownlee v. Clayton et al

Filing 72

ORDER signed by Magistrate Judge Gregory G. Hollows on 05/09/11 ordering that the following are vacated from this court's calendar, subject to being re-noticed by the court following the resolution of plaintiff's interlocutory appeal. Plai ntiff's motion pursuant to FRCP 50, filed on 09/29/10 45 . Plaintiff's motions for default judgment, filed on 10/06/10 48 and on 11/03/10 57 . Defendants 01/21/11 motion 67 to strike plaintiff's surreply 66 to defendants' reply 64 . The motion to dismiss filed on 09/23/10 41 on behalf of defendants Stocker and Grannis. The motion to dismiss filed on 12/13/10 61 on behalf of Calyton, Kansier and Sahota.(Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRENCE BROWNLEE,

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Plaintiff,

No. CIV S-08-0661 LKK GGH P

vs.
R. CLAYTON, et al.
Defendants.

ORDER
/

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action

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filed pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) defendants Stocker and

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Grannis’ motion to dismiss, pursuant to Fed. R. Civ. 12(b)(6), filed on September 23, 2010, to

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which plaintiff filed his opposition on October 6, 2010, after which a reply was filed by these

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defendants on October 14, 2010; plaintiff thereafter filed a response to the reply (or a surreply),

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on October 25, 2010; 2) plaintiff’s motion pursuant to Fed. R. Civ. P. 50, filed on September 29,

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2010; 3) plaintiff’s motions for a default judgment, filed on October 6, 2010, as to defendant

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Clayton, and on November 3, 2010, as to defendants Kansier and Sahota; 4) defendants Clayton,

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Kansier and Sahota’s motion to dismiss, pursuant to Rule 12(b)(6), filed on December 13, 2010,

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to which plaintiff filed an opposition on January 3, 2011, after which these defendants filed their

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reply, following which plaintiff filed a response or surreply, on January 21, 2011; 5) defendants

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Clayton, Kansier and Sahota’s January 26, 2011, motion to strike plaintiff’s January 21, 2011
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“surreply” to their motion to dismiss.

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In addition, on January 31, 2011, plaintiff filed a notice of appeal of the

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November 12, 2010, findings and recommendations, wherein the undersigned recommended

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denial of plaintiff’s request for (preliminary) injunctive relief. While he did not expressly seek to

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appeal the order adopting those findings and recommendations, that order was filed before

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plaintiff appealed. See Order, filed on January 11, 2011. Although the appeal has processed to

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the Ninth Circuit, this circuit has long “recognized an exception to the general rule that a valid

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notice of appeal divests the district court of jurisdiction over all but tangential matters.” Marks

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v. Clarke, 102 F.3d 1012, 1018 n. 8 (9th Cir. 1996), citing Chuman v. Wright, 960 F.2d 104, 105

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(9th Cir. F.2d 104, 105 (9th Cir. 1992) (“frivolous or forfeited appeal does not automatically

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divest the district court of jurisdiction.”). See also, U. S. v. Powell, 24 F.3d 28 (9th Cir. 1994);

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U.S. v. LaMere, 951 F.2d 1106, 1108 (9th Cir. 1991); U.S. v. Claiborne, 727 F.2d 842 (9th Cir.

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1984). This exception appears to be used primarily where the Court of Appeals lacks jurisdiction

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over the appeal, a fact not apparent here. However, assuming the exception applies to the merit

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of appeals, and, in this instance while plaintiff’s interlocutory appeal, on the face of it, appears to

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be meritless, this court will not test its jurisdiction while the matter is before the Ninth Circuit.

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Therefore, all pending motions before this court (among which are several questionable motions

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brought by plaintiff) will be vacated subject to being re-noticed by the undersigned upon

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resolution of the pending appeal.

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Accordingly, IT IS ORDERED that the following are VACATED from this

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court’s calendar, subject to being re-noticed by the court following the resolution of plaintiff’s

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interlocutory appeal:

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1. Plaintiff’s motion pursuant to Fed. R. Civ. P. 50, filed on September 29, 2010
(docket # 45);
2. Plaintiff’s motions for default judgment, filed on October 6, 2010 (docket #
48), and on November 3, 2010 (docket # 57);
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3. Defendants’ January 21, 2011 (docket # 67), motion to strike plaintiff’s
surreply (docket # 66) to defendants’ reply (docket # 64);

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4. The motion to dismiss, filed on September 23, 2010 (docket # 41), on behalf of
defendants Stocker and Grannis;

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5. The motion to dismiss, filed on December 13, 2010 (docket # 61), on behalf of

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defendants Clayton, Kansier and Sahota.

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DATED: May 9, 2011

/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE
GGH:009
brow0661.ord

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