Correa v. Gower et al

Filing 17

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/17/10 ordering that a second amended complaint shall be filed. (Plummer, M)

(PC) Correa v. Gower et al

Doc. 17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. R.L. GOWER, et al., Defendants. / Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned. See docket # 4, filed on March 26, 2010. Plaintiff's original complaint was dismissed by order, filed on June 2, 2010 (docket # 6), with leave to amend. Plaintiff's amended complaint was thereafter dismissed by order, filed on August 23, 2010, with leave to file a second amended complaint within twentyeight days. Plaintiff did not file a second amended complaint. Rather, plaintiff filed an appeal to the Ninth Circuit, on October 1, 2010 (docket # 13). That appeal was "dismissed for lack of jurisdiction" on December 9, 2010 because the order appealed from was "not final or appealable" (docket # 16). Despite the purported interlocutory appeal, the district court retained jurisdiction because this circuit has long "recognized an exception to the general rule that a valid 1
Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA VICTOR M. CORREA, Plaintiff, No. CIV S-10-603 GGH P

ORDER

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

notice of appeal divests the district court of jurisdiction over all but tangential matters," when the appeal is patently frivolous. Marks v. Clarke, 102 F.3d 1012, 1018 n. 8 (9th Cir. 1996), citing Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. F.2d 104, 105 (9th Cir. 1992) ("frivolous or forfeited appeal does not automatically divest the district court of jurisdiction."). See also, U. S. v. Powell, 24 F.3d 28 (9th Cir. 1994); U.S. v. LaMere, 951 F.2d 1106, 1108 (9th Cir. 1991); U.S. v. Claiborne, 727 F.2d 842 (9th Cir. 1984). As the appeal, based on an unappealable order, was without merit, plaintiff was not relieved of his obligation to file a proposed second amended complaint timely. Plaintiff has failed to do so and the time for doing so has long since expired. Plaintiff shall file the second amended complaint within twenty days; no extensions shall be granted. Accordingly, IT IS ORDERED that a second amended complaint shall be filed. DATED: December 17, 2010 /s/ Gregory G. Hollows GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
GGH:009 corr0603.ord2

2