Estrada v. Clines et al

Filing 75

ORDER by Judge Lucy H. Koh denying 70 Motion to Vacate (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 3/15/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JAIME IGNACIO ESTRADA,
Plaintiff,

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vs.
C. MALO-CLINES,
Defendant.

) No. C 10-4832 LHK (PR)
)
) ORDER DENYING MOTION TO
) VACATE
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Plaintiff, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983
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against Defendant Nurse Practitioner C. Malo-Clines at Pelican Bay State Prison (“PBSP”). On
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August 28, 2012, the Court granted Defendant’s motion for summary judgment and denied
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Plaintiff’s motion for summary judgment. (Dkt. No. 65.) On September 10, 2012, Plaintiff filed
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a notice of appeal with the Ninth Circuit. (Dkt. No. 68.) On September 14, 2012, the Ninth
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Circuit acknowledged Plaintiff’s notice of appeal and set a briefing schedule. (Dkt. No. 69.) On
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October 4, 2012, Plaintiff filed in this Court a motion to vacate pursuant to Federal Rule of Civil
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Procedure 60. (Dkt. No. 70.) Defendant has filed an opposition, and Plaintiff has filed a reply.
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It is well established that once Plaintiff filed a notice of appeal of this Court’s judgment
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granting Defendant’s motion for summary judgment, this Court lost jurisdiction over the action.
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Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004). To seek Rule 60(b) relief during the
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Order Denying Motion to Vacate
G:\PRO-SE\SJ.LHK\CR.10\Estrada832recon.wpd

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

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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). Plaintiff has not followed this

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procedure. Nor is this Court inclined to entertain or grant the Rule 60(b) motion. Plaintiff’s

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motion is DENIED.

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IT IS SO ORDERED.
DATED: 3/14/13
LUCY H. KOH
United States District Judge

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Order Denying Motion to Vacate
G:\PRO-SE\SJ.LHK\CR.10\Estrada832recon.wpd

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