Ridgeway v. Commonwealth of Kentucky

Filing 16

MEMORANDUM AND OPINION by Chief Judge Joseph H. McKinley, Jr on 3/29/13; The Court will dismiss this ation by separate order.cc:Appeals Clerk, Plaintiff (pro se) (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
THOMAS RIDGEWAY

PLAINTIFF

v.

CIVIL ACTION NO. 4:12CV-P90-M

COMMONWEALTH OF KENTUCKY et al.

DEFENDANTS

MEMORANDUM OPINION
This matter is before the Court on a notice received from the United States Postal Service
that a Memorandum and Order entered on January 3, 2013 (DN 13), and sent to Plaintiff Thomas
Ridgeway was returned marked “Return to Sender, Refused, Unable to Forward.”
I.
At the outset, the Court observes that Plaintiff currently has an interlocutory appeal
pending in the Sixth Circuit challenging a non-dispositive decision of this Court. “As a general
rule, a district court no longer has jurisdiction over an action as soon as a party files a notice of
appeal” unless “the appeal is untimely, presents issues that the appellate court had previously
decided in the same case, or is from a non-final, non-appealable order.” Pittock v. Otis Elevator
Co., 8 F.3d 325, 327 (6th Cir. 1993). A notice of appeal from a plainly non-appealable order may
properly be ignored by the district court. Cochran v. Birkel, 651 F.2d 1219, 1222 (6th Cir. 1981).
Accordingly, while the district court lacks jurisdiction to outright dismiss the improper appeal,
Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir. 1994), it may nevertheless proceed to
adjudicate the merits of the underlying action as if the improper appeal had not been filed.
Cochran, 641 F.2d at 1222. Upon review of the pending notice of appeal (DN 9) filed by
Plaintiff, the Court finds that it is an attempt to appeal a non-final, non-appealable order, and
therefore, does not divest this Court of its jurisdiction.

II.

After initiating this action, Plaintiff filed a “motion for in forma pauperis.” However, he
failed to file the motion on the Court’s prisoner application to proceed without prepayment of
fees and affidavit form or to file a prison trust account statement as required by 28 U.S.C.
§ 1915(a)(2), despite having been ordered to do so by the Court and having received the
appropriate form from the Clerk of Court. The Court therefore denied Ridgeway’s motion but
gave Ridgeway another opportunity to comply with 28 U.S.C. § 1915(a)(2) and again directed
the Clerk to send Ridgeway the appropriate form.
Ridgeway again failed to comply with the Court’s Order and instead filed a notice of
appeal. However, Ridgeway failed to pay the $455.00 filing fee for an appeal or to file an
application to proceed without prepayment of fees and a certified copy of his prison trust account
statement. After receiving a deficiency notice from the Clerk of Court, Ridgeway then filed a
motion for leave to proceed in forma pauperis on appeal. However, that motion was not filed on
the Court’s approved form and did not include Ridgeway’s prison trust account statement. The
Court again entered a Memorandum and Order directing him to file his motion on the
appropriate form and to submit his prison trust account statement as required by 28 U.S.C. §
1915(a)(2).
On January 18, 2013, that Memorandum and Order was returned by the United States
Postal Service marked “Return to Sender, Refused, Unable to Forward.” Plaintiff has not
advised the Court of a change of address. Therefore, neither notices from the Court nor filings
by Defendants in this action can be served on Plaintiff. In such situations, courts have an
inherent power “acting on their own initiative, to clear their calendars of cases that have

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remained dormant because of the inaction or dilatoriness of the parties seeking relief.” Link v.
Wabash R.R. Co., 370 U.S. 626, 630 (1962). Because it appears to this Court that Plaintiff has
abandoned any interest in prosecution of this case, the Court will dismiss the case by separate
Order.
Date:

March 29, 2013

cc:

Plaintiff, pro se
Clerk, Sixth Circuit Court of Appeals (No. 12-6477)
4414.010

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