Mervil v. United States of America - FTCA et al

Filing 95

ORDER staying further proceedings in this matter pending resolution of appeal to the Eighth Circuit Court of Appeals.(Written Opinion). Signed by Senior Judge David S. Doty on 12/13/2014. (PJM) CC: Mervil. (kt)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-1581(DSD/TNL)
Elainaise Mervil,
Plaintiff,
ORDER

v.
United States of America FTCA, Warden Nicole English,
M.D. Sandra Lauring, M.D.
Donald Collins, Counselor
Matthew Levisay, Mary Ellen
Rivers-Graham HSA,
Defendants.

Elainaise, Mervil, #20982-018, FCI Waseca, P.O. Box 1731,
Waseca, MN 56093, pro se.
Friedrich A.P. Siekert, Assistant U.S. Attorney, 300
South Fourth Street, Suite 600, Minneapolis, MN 55415,
counsel for defendants.

This matter is before the court sua sponte.

On January 6,

2014, Chief Magistrate Judge Arthur J. Boylan recommended that the
defendants’

motion

to

dismiss

be

granted

and

that

Elainaise Mervil’s claims be dismissed with prejudice.

plaintiff
The report

and recommendation noted that “[w]ritten objections must be filed
with the [c]ourt before January 21, 2014.”

ECF No. 86, at 18.

Mervil did not file any timely objection, and the court adopted the
report and recommendation on January 22, 2014.
objected on January 23, 2014.

ECF No. 90.

ECF No. 88.

Mervil

On February 6, 2014,

Mervil filed a notice of appeal to the Eighth Circuit Court of
Appeals.

ECF No. 91.

The court has an “inherent power to determine as a preliminary
matter its own subject matter jurisdiction.”

Hunter v. Underwood,

362 F.3d 468, 475 (8th Cir. 2004) (citation and internal quotation
marks omitted).

The filing of a notice of appeal is “an event of

jurisdictional significance” that confers jurisdiction on the court
of appeals and divests the district court of control over those
aspects of the case involved in the appeal.

Liddell v. Bd. of

Educ., 73 F.3d 819, 822 (8th Cir. 1996) (citation omitted).

“[A]

federal district court and a federal court of appeals should not
attempt

to

assert

jurisdiction

Hunter, 362 F.3d at 475.

over

a

case

simultaneously.”

Moreover, a district court that is

divested of jurisdiction may not reexamine or supplement the order
appealed.

Missouri ex rel. Nixon v. Coeur D’Alene Tribe, 164 F.3d

1102, 1106 (8th Cir. 1999).

As a result, the court is without

jurisdiction to consider the untimely objections.

Accordingly, IT

IS HEREBY ORDERED that further proceedings in this matter are
stayed pending resolution of plaintiff’s appeal to the Eighth
Circuit Court of Appeals.
Dated:

February 13, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court

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