Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983.
On June 16, 2009, the assigned magistrate judge issued findings and recommendations, recommending that defendants' motion to dismiss plaintiff's complaint for failure to state a claim be granted. On June 26, 2009, plaintiff filed a notice of interlocutory appeal. On August 19, 2009, the United States Court of Appeals for the Ninth Circuit dismissed the appeal for lack of jurisdiction. On August 31, 2009, the undersigned adopted the magistrate judge's findings and recommendations in full, granted defendants' motion to dismiss, and closed the case. The court entered judgment on the same day. Plaintiff filed a notice of appeal of the court's order dismissing the case. However, as the court was processing his appeal, plaintiff filed three additional motions addressed to this court.
First, plaintiff filed a "motion for taking judicial notice." Although the motion is addressed to this court, it appears that plaintiff may have intended to present it to the Ninth Circuit. In his motion, plaintiff appears to ask Circuit Judges Schroeder, Kleinfeld, and Smith to take judicial notice of the magistrate judge's findings and recommendations, recommending dismissal of his action for failure to state a claim. Presumably, plaintiff believed that the findings and recommendations provided grounds for his interlocutory appeal. However, as the Circuit Judges explained in their order, that court lacks jurisdiction over an interlocutory appeal of a magistrate judge's findings and recommendations because they are not a final or appealable order. See Serine v. Peterson, 989 F.2d 371, 372-373 (9th Cir. 1993) (premature appeal from magistrate judge's order not cured by subsequent entry of judgment by district court). Moreover, as noted above, plaintiff has since filed a notice of appeal of the court's order adopting the magistrate judge's findings and recommendations. Accordingly, the court will deny plaintiff's motion for judicial notice as moot.
Second, plaintiff has filed a "motion for a new trial" pursuant to Rule 59(a) of the Federal Rules of Civil Procedure. Therein, plaintiff seeks a new trial or, in the alternative, an order re-opening this case in light of "newly discovered evidence" and his "supporting affidavits." Rule 59(a) of the Federal Rules of Civil Procedure allows a court to grant a new trial after a jury trial or a non-jury trial. However, no trial took place in this case. Accordingly, the court has construed plaintiff's motion as a motion to alter or amend the judgment brought pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Although plaintiff clearly disagrees with the court's order dismissing this action, he has not set forth any grounds whatsoever for the court to grant him relief under Rule 59. Moreover, although plaintiff refers to "newly discovered evidence" and "supporting affidavits" in his motion, he has not described any evidence or attached any supporting affidavits to his motion. See School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5. F.3d 1255, 1262-63 (9th Cir. 1993) (describing grounds for relief under Rule 59(e)). Accordingly, the court will deny plaintiff's Rule 59 motion.
Finally, plaintiff has filed a "motion for leave to lift order sealing all evidentiary exhibits and to make such exhibits public." Therein, plaintiff seeks a court order declaring all evidentiary exhibits in this action public. Plaintiff is advised that the court has not issued orders sealing any portions of the record in this case. The entire record in this action is public. Accordingly, the court will deny plaintiff's motion as unnecessary.
For the reasons discussed above, IT IS HEREBY ORDERED that:
1. Plaintiff's September 8, 2009 motion for judicial notice (Doc. No. 57) is denied as moot;
2. Plaintiff's September 8, 2009 motion for a new trial (Doc. No. 59) is denied; and
3. Plaintiff's September 10, 2009 motion (Doc. No. 61) is denied as unnecessary.
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