Schoppe-Rico v. Rupert et al

Filing 89

ORDER by Judge Yvonne Gonzalez Rogers denying 84 Motion for Leave to File a Motion for Reconsideration. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 9/24/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN M. SCHOPPE-RICO,

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No. C 11-4283 YGR (PR)

Plaintiff,

ORDER DENYING PLAINTIFF'S
MOTION FOR LEAVE TO FILE A
MOTION FOR RECONSIDERATION

vs.
J. L. RUPERT et al.,
Defendants.

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United States District Court
For the Northern District of California

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Plaintiff filed this pro se civil rights action under 42 U.S.C. § 1983 alleging constitutional

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violations stemming from his previous incarceration at Pelican Bay State Prison ("PBSP"). He

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alleged that individuals at PBSP opened his confidential legal mail outside of his presence and did

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so with a retaliatory motive.

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In an Order dated September 28, 2012, the Court granted Defendants' motion to dismiss

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Plaintiff's complaint for failure to state a claim upon which relief can be granted, and entered

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judgment in favor of Defendants. (Docket. Nos. 77, 78.)

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On October 15, 2012, Plaintiff filed a notice of appeal with the Ninth Circuit Court of
Appeals. (Docket. No. 79.)
On October 16, 2012, the Ninth Circuit acknowledged Plaintiff's notice of appeal and set a
briefing schedule. (Docket. No. 80.)
On November 5, 2012, the Ninth Circuit referred the matter to this Court for a determination
whether Plaintiff's in forma pauperis ("IFP") status should continue for this appeal.
On November 9, 2012, Plaintiff filed in this Court a motion entitled, "Motion for an
Extension of Time to File Motion for Reconsideration" (Docket No. 84).

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In an Order dated November 13, 2012, this Court certified that any appeal taken from the

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judgment of this action will not be taken in good faith and is therefore frivolous. (Nov. 13, 2012

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Order at 1.) Accordingly, the Court revoked Plaintiff's IFP status.

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In an Order dated February 28, 2013, the Ninth Circuit reviewed the record on appeal and

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confirmed that Plaintiff was not entitled to IFP status on appeal because it found that his appeal was

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"frivolous." (Ninth Circuit Feb. 28, 2013 Order at 1.) The Ninth Circuit directed Plaintiff to pay the

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$455.00 filing fee within twenty-one days or the appeal would be dismissed for failure to prosecute.

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In an Order dated April 5, 2013, the Ninth Circuit dismissed Plaintiff's appeal for failure to
prosecute because he did not pay the filing fee within the twenty-one day deadline.
On July 11, 2013, the Clerk of the Court for the United States Supreme Court informed this
Court that Plaintiff had filed a writ of certiorari on June 26, 2013.

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DISCUSSION
The Court construes Plaintiff's "Motion for an Extension of Time to File Motion for

United States District Court
For the Northern District of California

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Reconsideration" as a motion for leave to file a motion for reconsideration. It is well established

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that once Plaintiff filed a notice of appeal of this Court's judgment, this Court lost jurisdiction over

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the action. Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004). To seek Rule 60(b) relief

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during the pendency of an appeal, "the proper procedure is to ask the district court whether it wishes

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to entertain the motion, or grant it, and then move [the Ninth Circuit], if appropriate, for remand of

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the case." Id. (citation and internal quotation marks omitted). The Court finds that such a procedure

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is not needed in the present case because Plaintiff's appeal in the Ninth Circuit was closed and found

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to be frivolous. However, this Court is not inclined to entertain or grant the motion for

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reconsideration. Accordingly, his motion for leave to file a motion for reconsideration in this Court

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(Docket No. 84) is DENIED.

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This Order terminates Docket No. 84.

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IT IS SO ORDERED.

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DATED:

September 24, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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G:\PRO-SE\YGR\CR.11\Schoppe-Rico4283.DenyRecons.wpd

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