Wicklund v. Idaho Department of Corrections et al

Filing 58

MEMORANDUM DECISION AND ORDER denying 52 Motion to Dismiss. Until the Ninth Circuit resolves the current appeals, no further pleadings will be entertained by this Court.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARK STEPHEN WICKLUND,
Case No. 1:09-CV-00674-EJL-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
IDAHO DEPARTMENT OF
CORRECTIONS, a department of the
State of Idaho, IDAHO COMMISSION
OF PARDON AND PAROLE, a
commission of the State of Idaho,
STATE OF IDAHO SANE
SOLUTIONS, TERRY REILLY
HEALTH SERVICES, KEN BENNETT,
an individual, MOIRA LYNCH, an
individual, WILLIAMS C. YOUNG, an
individual, BRANDON SUTHERLAND,
an individual, ELISSA MEZO, an
individual, MARK MCCULLOUGH, an
individual, HEIDI HART, an individual,
Defendants.

Pending before the Court in the above-entitled matter is Defendants’ Motion to
Dismiss (Dkt. 52) filed on May 17, 2012. The motion alleges all claims against all
defendants should be dismissed based on Plaintiff’s failure to appear or have new counsel
appear on his behalf after his counsel was allowed to withdraw. Plaintiff filed a Notice of
Pro Se Appearance on June 6, 2012 (Dkt. 54). The Court granted Plaintiff thirty days to

MEMORANDUM DECISION AND ORDER- 1

file a response to Defendants’ motion to dismiss (Dkt. 55). Plaintiff did not file a
response to the motion.
Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record. Accordingly, in the interest
of avoiding further delay, and because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument, this Court withdraws its
referral of this motion to Chief United States Magistrate Judge Candy W. Dale and the
matter shall be decided on the record before this Court without oral argument.
The Court notes that all defendants and claims, except the First Amendment claim
against Defendant Ken Bennett, have already been dismissed from this case. State of
Idaho Defendants have filed an appeal of this Court’s order denying the motion for
summary judgment based on qualified immunity. Plaintiff filed a cross appeal. A
briefing schedule was issued by the Ninth Circuit (Dkt. 50).
The Court finds as to all defendants, except Mr. Bennett, the motion to dismiss is
moot as such defendants have already been dismissed with prejudice. As to Mr. Bennett,
the Court finds it would be improper for this Court to dismiss without prejudice the First
Amendment claim against Mr. Bennett when the pro se Plaintiff has now filed a Notice
of Appearance and the matter is on appeal. “Once a notice of appeal is filed, the district
court loses jurisdiction over a case.” United States v. Sadler, 480 F.3d 932, 941 (9th Cir.
2007) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per
curiam) (“The filing of a notice of appeal is an event of jurisdictional significance-it
confers jurisdiction on the court of appeals and divests the district court of its control over
MEMORANDUM DECISION AND ORDER- 2

those aspects of the case involved in the appeal.” )).

Moreover, even if this Court was found to have jurisdiction over the pending
motion to dismiss, the Court would decline to grant such relief. It is unfortunate that
Plaintiff did not file his Notice of Appearance in a timely manner, but there is some
uncertainty as to the day he was served with a copy of the Order allowing his counsel to
withdraw and he has now filed his appearance. The Ninth Circuit has set forth the factors
to be weighed in dismissing a case:
Before dismissing the action, the district court is required to weigh several factors:
“(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need
to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits; and (5) the availability of less
drastic sanctions.”
Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) citing Henderson v. Duncan, 779 F.2d

1421, 1423 (9th Cir. 1986). In applying these factors, the Court finds the Plaintiff’s
failure to timely file his notice of appearance does not outweigh the public policy
favoring disposition of cases on the merits and at this stage of the litigation there is no
risk of prejudice to the Defendants due to the late filing of the notice of appearance by the
pro se litigant. In the interests of justice, the Court finds having this matter against Mr.
Bennett decided on the merits is the proper way to proceed and the motion to dismiss
(Dkt. 52) is DENIED. Until the Ninth Circuit resolves the current appeals, no further
pleadings will be entertained by this Court.

MEMORANDUM DECISION AND ORDER- 3

So Ordered.

DATED: August 21, 2012

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER- 4