Atwood II v. United States of America et al
ORDER granting 25 Motion to Supplement Motion to Dismiss; and Order of Dismissal. The petition is dismissed without prejudice but without leave to amend, both for lack of jurisdiction, and also because Atwood by his non-opposition has consented to its dismissal. All other pending requests are denied as moot and all pending dates are vacated. Signed by Judge Larry Alan Burns on 1/10/2018. (All non-registered users served via U.S. Mail Service)(jdt)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DAVID GARLAND ATWOOD II,
CASE NO. 17cv1320-LAB (WVG)
ORDER GRANTING MOTION TO
SUPPLEMENT MOTION TO DISMISS;
UNITED STATES OF AMERICA, et al.,
ORDER OF DISMISSAL
The United States moved to dismiss Petitioner David Atwood’s petition for writ of
mandamus. When Atwood failed to oppose the motion, the Court ordered him to show cause
why the motion should not be granted. (See Docket no. 24.) He was required to file an
opposition by December 15. The Court’s order warned him that if he did not do so, his non-
opposition would be deemed consent to the motion’s being granted, as provided by
applicable local rules. Since then, he has filed nothing.
The United States recently filed an ex parte application (Docket no. 25) to supplement
its earlier motion to dismiss. That application is GRANTED. In its supplemental filing, the
government informed the Court that Atwood’s supervised release was revoked and he was
remanded into custody for a period of 72 months. The Court has reviewed the docket in the
related criminal case, United States v. Atwood, 15cr45-HTW-FKB (S.D. Miss.) and takes
notice of the records in that case as provided by Fed. R. Evid. 201. See United States v.
Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004) (court may take judicial notice of court
records in another case).
The records confirm the government’s representations. On January 5 of this year,
Judge Henry Wingate issued his judgment of revocation. (Docket no. 308.) Atwood has
filed a notice of appeal of that court’s decision. The government suggests that this renders
Atwood’s claim moot, although it might also be said that Atwood’s claim has become unripe
for adjudication. Either way, the Court lacks jurisdiction to adjudicate it. See North Carolina
v. Rice, 404 U.S. 244, 245–46 (1971) (holding that federal courts lack jurisdiction to decide
moot questions); Austin v. City & Cty of Honolulu, 840 F.3d 678, 682 (9th Cir. 1988) (“Unless
a claim is ripe, we do not have jurisdiction to hear it.”). Atwood either prevails on appeal or
serves his 72-month sentence, the Court could not grant him any relief even if he could show
he were eligible for it.
The petition is DISMISSED without prejudice but without leave to amend, both for lack
of jurisdiction, and also because Atwood by his non-opposition has consented to its
dismissal. All other pending requests are DENIED AS MOOT and all pending dates are
IT IS SO ORDERED.
DATED: January 10, 2018
HONORABLE LARRY ALAN BURNS
United States District Judge
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