SIROIS v. BUREAU OF PRISONS

Filing 54

ORDER dismissing without prejudice 45 Motion for Reconsideration; dismissing without prejudice 50 Motion for Discovery, Disclosure and Evidence; dismissing without prejudice 51 Motion to Amend; dismissing without prejudice 51 Motion to Appoint Counsel; dismissing without prejudice 52 Motion to Appoint Counsel; dismissing without prejudice 53 Motion Requesting More Evidence. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RICKY L. SIROIS,
Plaintiff,
v.
BUREAU OF PRISONS, et al.,
Defendants

)
)
)
)
)
)
)
)
)

2:17-cv-00324-GZS

ORDER ON PENDING MOTIONS
On May 9, 2018, the Court granted Defendants’ motion to dismiss, and entered
judgment in favor of Defendants. (Order, ECF No. 43; Judgment, ECF No. 44.) On May
24, 2018, Plaintiff filed a Notice of Appeal as to the Court’s order of dismissal. (Notice of
Appeal, ECF No. 46.)
On the same day Plaintiff filed the Notice of Appeal, Plaintiff also filed a motion to
reconsider the Court’s order denying his request to appoint counsel. (Motion, ECF No. 45.)
Plaintiff subsequently filed a motion for discovery (ECF No. 50), a motion to add
defendants and to appoint counsel (ECF No. 51), a motion to appoint counsel (ECF No.
52), and a motion requesting evidence. (ECF No. 53.)
“[A]s a general rule, the filing of a notice of appeal divests a district court of
authority to proceed with respect to any matter touching upon, or involved in, the appeal.”
United States v. Brooks, 145 F.3d 446, 455 (1st Cir. 1998) (internal quotation marks
omitted). “[A] district court can proceed, notwithstanding the filing of an appeal, if the
notice of appeal is defective in some substantial and easily discernible way (if, for example,

it is based on an unappealable order) or if it otherwise constitutes a transparently frivolous
attempt to impede the progress of the case.” Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 96
(1st Cir. 2003).
Because the Court cannot conclude that all of the matters raised by the motions are
not involved in the appeal, and because the order from which Plaintiff has appealed is an
appealable order, at this stage of the proceedings, the Court lacks the authority to grant
Plaintiff the relief he seeks. The Court, therefore, dismisses Plaintiff’s motions without
prejudice to Plaintiff’s ability to renew the motions in the event he is successful on the
appeal.
NOTICE
Any objections to this Order shall be filed in accordance with Fed. R. Civ. P. 72.

/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 20th day of June, 2018.

2