Moore v. Doe

Filing 27

FINAL ORDER dismissing civil action without prejudice. This action is dismissed without prejudice for failure to pay the $400 civil and administrative filing fees. Signed by Judge William Q. Hayes on 8/14/2019.(All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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JEFFREY AARON MOORE,
Plaintiff,

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Case No.: 3:18-cv-1218-WQH-BLM
FINAL ORDER DISMISSING CIVIL
ACTION WITHOUT PREJUDICE

v.

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JOHN DOE, United States Marine Drill
Instructor,
Defendant.

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On June 7, 2018, Plaintiff, Jeffrey Aaron Moore, currently housed at the Mohave

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County Adult Detention Center located in Kingman, Arizona, filed a civil action pursuant

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to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.

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388 (1971). (ECF No. 1). Plaintiff did not prepay the full civil filing fee required by 28

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U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis (IFP). (ECF

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No. 2). In addition, Plaintiff filed a “Motion to Appoint Counsel” along with a “Motion

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for Emergency Status.” (ECF Nos. 3, 4).

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On June 22, 2018, the Court denied Plaintiff’s Motion to Proceed IFP as barred by

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28 U.S.C. § 1915(g), dismissed the action for failing to prepay the $400 civil and

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3:18-cv-1218-WQH-BLM

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administrative filing fees required by 28 U.S.C. § 1914(g), and denied the remaining

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motions as moot. (ECF No. 5). Plaintiff filed a Notice of Appeal with the Ninth Circuit

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Court of Appeals. (ECF No. 7).

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On January 24, 2019, the Ninth Circuit Court of Appeals issued an order vacating

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the June 22, 2018 Order and “remanded for further proceedings consistent with this order.”

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(ECF No. 17). The Court of Appeals found that one of the three dismissals in previously

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filed actions relied on by this Court in finding that Plaintiff had “three strikes” pursuant to

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28 U.S.C. § 1915(g) was “improperly counted as a strike.” Id. at 1. The Court of Appeals

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found that the “district court correctly concluded that two other prior dismissals” could be

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considered “strikes” for 28 U.S.C. § 1915(g) purposes and noted that “it appears there may

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be other dismissed actions that qualify as strikes.” Id.

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On March 18, 2019, the mandate was issued.

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On March 28, 2019, the Court spread the mandate. (ECF Nos. 19–20).

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On March 28, 2019, the Court issued an order on remand denying the Motion to

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Proceed IFP as barred by 28 U.S.C. § 1915(g), dismissed the action for failing to prepay

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the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(g), and denied

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the remaining motions as moot. (ECF No. 18). The Court granted Plaintiff thirty days to

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pay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a) and stated,

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“If Plaintiff fails to pay the entire civil and administrative fee within the time provided, the

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Court will enter a final Order dismissing this civil action.” Id. at 6.

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On April 3, 2019, Plaintiff filed a Notice of Appeal. (ECF No. 21).

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On July 10, 2019, the Court of Appeals dismissed the appeal for failure to prosecute.

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(ECF No. 26). The Court of Appeals stated, “This order served on the district court shall,

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21 days after the date of the order, act as and for the mandate of this court.” Id. at 1.

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The Federal Rules of Appellate Procedure provide “The mandate is effective when

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issued.” Fed. R. App. P. 41. Jurisdiction returns to the district court once the mandate of

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the appellate court is issued. See Caldwell v. Puget Sound Elec. Apprenticeship & Training

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3:18-cv-1218-WQH-BLM

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Tr., 824 F.2d 765, 767 (9th Cir. 1987) (“[T]he mandate of the court of appeals, once issued,

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returns to the district court. . . . Upon return of its mandate, the district court . . . may act

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on ‘matters left open by the mandate.’”) (quoting In re Sanford Fork & Tool Co., 160 U.S.

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247, 256 (1895)).

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The record reflects no further filings. The record reflects that Plaintiff has not paid
the civil and administrative filing fees required by 28 U.S.C. § 1914(a).
IT IS HEREBY ORDERED that this action is dismissed without prejudice for failure
to pay the $400 civil and administrative filing fees.
Dated: August 14, 2019

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3:18-cv-1218-WQH-BLM