Anthony J. Burriola VS N.D.O.C., et al.

Filing 225

ORDER - In response to the Ninth Circuit's 224 referral notice, the court certifies that the appeal is frivolous and not taken in good faith. Signed by Judge James C. Mahan on 07/23/2013. (Copies have been distributed pursuant to the NEF and electronically to the USCA Ninth Circuit - KR)

1
2
3
4
UNITED STATES DISTRICT COURT
5
DISTRICT OF NEVADA
6
7

ANTHONY J. BURRIOLA,

8
9
10
11
12

3:04-CV-346 JCM (RAM)

Plaintiff,
v.
NEVADA DEPARTMENT OF
CORRECTIONS,
Defendant.

13
14

ORDER

15

Presently before the court is a referral notice from the Ninth Circuit. (Doc. # 224).

16

This case was filed by prisoner plaintiff Anthony J. Burriola, appearing pro se, in 2004.

17

Plaintiff’s complaint was filed pursuant to 42 U.S.C. § 1983 alleging wrongdoing by Nevada

18

Correctional facility staff violating plaintiff's civil rights. This included being denied shoulder

19

surgery and treatment for the related pain, amongst other wrongdoing.

20

In September 2009, Cal J. Potter, III, appeared as attorney of record for plaintiff. (Doc. #

21

169). On July 7, 2011, the parties submitted a stipulation and order for dismissal with prejudice.

22

(Doc. # 208). On July 8, 2011, the court entered an order for dismissal with prejudice. (Doc. # 209).

23

As part of the basis of the settlement between the parties, plaintiff was to receive surgery on his

24

shoulder. (Doc. # 212, ¶ 14). However, it appears that plaintiff has since refused medical treatment.

25

(Id., ¶ 25, Ex. 18).

26

On April 25, 2013, plaintiff filed a motion to reopen the case because plaintiff argues that

27

dismissal was based on fraud. (Doc. # 216). The court denied the motion as untimely and for failing

28
James C. Mahan
U.S. District Judge

1

to satisfy the standard to warrant this court’s reconsideration of its final order dismissing this case

2

with prejudice. (Doc. # 220). The instant appeal followed. (Doc. # 221).

3

The court finds that the appeal of this court’s order is not taken in good faith and that the

4

appeal is frivolous. This court’s order denying plaintiff’s request for reconsideration of its final order

5

(doc. # 209) was squarely within the Federal Rules of Civil Procedure 59 and 60. (See doc. # 220).

6

Plaintiff failed to satisfy his burden to warrant this court’s reconsideration of its final order.1

7

Accordingly,

8

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that, in response to the Ninth

9

Circuit’s referral notice (doc. # 224), the court certifies that the appeal is frivolous and not taken in

10
11

good faith.
DATED July 23, 2013.

12
13
UNITED STATES DISTRICT JUDGE
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

1

The appellate court, however, may grant in forma pauperis status on appeal. See O’Neal v. Price, 531 F.3d
1146, 1149 (9th Cir. 2008) (“[S]ubsections (a)(4) and (5) of Rule 24 of the Federal Rules of Appellate Procedure give
litigants a procedural route for challenging the trial court’s certification.”).

-2-