Leavitt v. Wickham et al

Filing 18

ORDER that the Court certifies to the Court of Appeals that the appeal is not taken in good faith. Signed by Judge Gloria M. Navarro on 5/21/2013. (Copies have been distributed pursuant to the NEF - cc: Court of Appeals - SLD)

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 1 2 3 CODY LEAVITT, 4 Plaintiff, 2:13-cv-00490-GMN-CWH 5 vs. 6 ORDER 7 8 HAROLD WICKHAM, et al., Defendants. 9 10 This prison civil rights matter comes before the Court following upon plaintiff’s filing of 11 a notice of appeal (#14). Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies to the Court 12 of Appeals that the appeal is not taken in good faith, because the appeal challenging the prior 13 judgment was constructively filed after plaintiff filed a Rule 59 motion and before that motion 14 was ruled upon, rendering the notice of appeal a nullity. 15 On April 2, 2013, the Court entered an order and judgment (## 2 & 3) dismissing the 16 improperly commenced action without prejudice, noting no adverse statute of limitations 17 consequences from the dismissal. Plaintiff constructively filed (i.e., mailed for filing) an 18 emergency motion to reopen the matter on April 8, 2013. In an April 23, 2013, order (#6) the 19 Court granted petitioner’s emergency motion to reopen the case, vacated the judgment of 20 dismissal, and reopened the matter. 21 The notice of appeal (#14) is dated April 22, 2013, and thus presumptively was 22 constructively filed on that date. As of April 22, 2013, plaintiff had filed a Rule 59 motion 23 which then still was pending on the district court’s docket. Plaintiff apparently sent the notice 24 first to the Clerk of Court for the Court of Appeals, who forwarded the notice to this Court’s 25 Clerk. Plaintiff sought in the notice of appeal to appeal the since-vacated April 2, 2013, 26 dismissal. 27 With deference to the final authority of the Court of Appeals in matters relating to its 28 own jurisdiction, the notice of appeal would appear to be a nullity because it was 1 constructively filed while a timely Rule 59 motion was pending. See,e.g., Munden v. Ultra- 2 Alaska Assoc., 849 F.2d 383, 386 (9th Cir. 1988); see generally 11 C. Wright, A. Miller, M. 3 Kane, et al., Federal Practice & Procedure: Civil § 2821, at n. 1 (2013). Plaintiff’s motion 4 (#11) to clarify the notice of appeal does not assert any specific request for relief that would 5 lead to a contrary conclusion. In all events, the dismissal has been vacated on a timely Rule 6 59 motion that was filed prior to the appeal, and all other requests for relief would appear to 7 present interlocutory matters that are not subject to appeal without entry of a final judgment. 8 It thus would appear that the appeal would be dismissed in the case of a non-indigent litigant. 9 IT IS THEREFORE ORDERED, pursuant to 28 U.S.C. § 1915(a)(3), that the Court 10 certifies to the Court of Appeals that the appeal is not taken in good faith. 11 IT IS FURTHER ORDERED, so that the certification herein shall be clearly marked on 12 the docket for review by the Court of Appeals, that the Clerk of this Court shall docket this 13 order on the docket sheet as an order that certifies to the Court of Appeals that the appeal 14 is not taken in good faith and shall forward same to the Ninth Circuit in a manner consistent 15 with the Clerk’s current practice, in connection with No. 13-15938 in the Court of Appeals. 16 DATED this 21st day of May, 2013. 17 18 19 20 ___________________________________ Gloria M. Navarro United States District Judge 21 22 23 24 25 26 27 28 -2-

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