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Olivas v. Neubarth

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 23, 2009

JESSE OLIVAS, PLAINTIFF,
v.
DR. J. NEUBARTH, DEFENDANT.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING PLAINTIFF'S "URGENT MOTION" AND MOTION FOR EXPEDITED REVIEW (Doc. 23)

This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Jesse Olivas, a state prisoner proceeding pro se and in forma pauperis. On September 21, 2009, Plaintiff filed an urgent motion seeking an expedited review of his motion for a temporary restraining order.

Based on Plaintiff 's citation to a Circuit Rule, albeit an incorrect citation, and Plaintiff's terminology, the Court concludes that Plaintiff is bringing an "Urgent Motion Under 9th Cir. R. 27-3(b)," and a Motion to Expedite under 9th Cir. R. 27-12. Motions brought under these Circuit Rules pertain to appeals, and must be filed with the Ninth Circuit. To the extent that Plaintiff is asking this Court to grant his requests as they relate to his pending appeal, the motion is not properly before this Court and is denied. Plaintiff must re-file his motion with the Ninth Circuit.

To the extent that Plaintiff is seeking relief pertaining to his recently filed motion for a temporary restraining order, the appellate rules cited to are not applicable in this court. Further, Plaintiff's pending appeal of the Court's denial of his previous motion for a temporary restraining order has divested this Court of jurisdiction pending resolution of his appeal. Pyrodyne Corp. v. Pyrotronics Corp., 847 F. 2d 1398, 1403 (9th Cir. 1988).

For the reasons set forth herein, Plaintiff 's "Urgent Motion" and Motion to Expedite, filed September 21, 2009, is HEREBY DENIED. If Plaintiff is seeking these forms of relief as they related to his pending appeal, he must file his motion in the Ninth Circuit.

IT IS SO ORDERED.

20090923

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