Wheeler v. DeYoung et al

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 36 Report and Recommendations, 20 Motion to Dismiss filed by The City of Middleton, Magsamen, G. Neilson, N. DeYoung. The R&R is adopted in its entirety as the opinion of the Court. With res pect to plaintiff's state law claims (if any), the motion to dismiss is GRANTED. The state law claims (if any) are dismissed without prejudice to re-filing after the service of a notice of claim, to the extent service of the notice of claim is timely and the assertion of such state law claims is not barred by the applicable statutes of limitations. With respect to plaintiff's Section 1983 claims for unlawful search, false arrest, and malicious prosecution, plaintiff's criminal conviction for obstruction of governmental administration arising out of his arrest on April 26, 2014, would bar those claims. However, because the conviction is currently on appeal, all proceedings in this case are STAYED pending the outcome of the criminal appeal. To the extent the motion is based on defendants' assertion of res judicata and collateral estoppel, the motion is DENIED. By no later than December 29, 2017, plaintiff is ORDERED to inform the Court by letter of the status of his criminal appeal. In addition, by no later than 14 days after the resolution of the appeal, plaintiff is ORDERED to inform the Court of such resolution. Finally, plaintiff is reminded that he must promptly notify the Court in writing if his address changes. Failure to comply with these orders may result in dismissal of the case for failure to prosecute or comply with court orders. Fed. R. Civ. P. 41(b). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from t his Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962). The Clerk is instructed to mail a copy of this Order to plaintiff at the address on the docket. The Clerk is instructed to terminate the motion. (Doc. #20). So Ordered., (Case stayed.) (Signed by Judge Vincent L. Briccetti on 11/14/17) (yv)