Jimenez v. Horel

Filing 67

ORDER signed by Magistrate Judge Kendall J. Newman on 7/2/2012 ORDERING that plaintiff's 63 motion to strike is DENIED without prejudice; and plaintiff's 65 motion to appeal is DENIED without prejudice. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT CHRISTOPHER JIMENEZ,

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Plaintiff,

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vs.

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No. 2:10-cv-2943 KJM KJN P

J. WHITFIELD,

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Defendant.

ORDER
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Plaintiff is a state prisoner proceeding without counsel. On June 22, 2012,

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plaintiff filed a document entitled: “Plaintiff’s Request to Enter: Motion to Strike Defendant’s

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Declaration of Barnts and Declaration of S.W. Brown, and Defendant’s Statement of Undisputed

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Facts.” (Dkt. No. 63 at 1.) While not entirely clear, it appears plaintiff is under the

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misapprehension that because defendants failed to file a reply to plaintiff’s objections to the

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findings and recommendations denying defendant Whitfield’s motion to dismiss, that defendant

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“waived” his right to “appeal,” and plaintiff is entitled to the relief sought in bringing this action.

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Plaintiff is mistaken. The denial of the motion to dismiss required defendant Whitfield to file a

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responsive pleading, which he did on April 13, 2012. (Dkt. No. 52.) The case now proceeds as

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set forth in this court’s scheduling order. (Dkt. No. 55.) Under the scheduling order, dispositive

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motions, including motions for summary judgment, were to be filed by October 12, 2012. (Dkt.
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No. 55.) Defendant Whitfield properly filed his motion for summary judgment on June 11, 2012.

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(Dkt. No. 60.) Plaintiff is now required to file an opposition to defendant’s motion for summary

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judgment. Fed. R. Civ. P. 56; see also January 12, 2011 Order at 4-5; L.R. 230(l).

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For all of the above reasons, plaintiff’s June 22, 2012 request is denied.

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In addition, on June 22, 2012, plaintiff filed a motion to appeal the district court’s

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order denying plaintiff the appointment of counsel. (Dkt. No. 65.)

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“When a Notice of Appeal is defective in that it refers to a non-appealable

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interlocutory order, it does not transfer jurisdiction to the appellate court, and so the ordinary rule

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that the district court cannot act until the mandate has issued on the appeal does not apply.”

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Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007). In this instance, plaintiff's motion

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for the appointment of counsel is not immediately appealable. Wilborn v. Escalderon, 789 F.2d

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1328, 1330 (9th Cir. 1986).

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Because the motion for appointment of counsel is not immediately appealable,
plaintiff’s motion to appeal is denied without prejudice.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s June 22, 2012 motion to strike (dkt. no. 63) is denied without

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prejudice; and

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2. Plaintiff’s June 22, 2012 motion to appeal (dkt. no. 65) is denied without

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prejudice.

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DATED: July 2, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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jime2943.mts

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