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Ellington v. Clark

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 20, 2010

MARCUS RUBEN ELLINGTON, PLAINTIFF,
v.
CLARK, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING MOTION TO COMPEL AS PREMATURE

(DOC. 56)

ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL AS PREMATURE

(DOC. 57)

Plaintiff Marcus Ruben Ellington ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act. Pending before the Court are Plaintiff's motion to compel Kern Valley State Prison to produce Plaintiff's property filed August 20, 2010, and Plaintiff's motion for extension of time to file notice of appeal filed August 25, 2010.

Plaintiff seeks to compel Kern Valley State Prison to produce Plaintiff's property. (Doc. 56.) Kern Valley State Prison is a named Defendant in Plaintiff's suit. However, Defendant Kern Valley State Prison has not appeared in this action. Discovery has yet to begin. A motion to compel is thus premature. Accordingly, the Court HEREBY ORDERS that Plaintiff's motion to compel is denied without prejudice.

Plaintiff also requests an extension of time to file a certificate of appeal. (Doc. 57.) It is unclear whether the United States Court of Appeals for the Ninth Circuit has jurisdiction in this matter if Plaintiff appeals, as a final judgment has not yet been issued in this action. See Fed. R. Civ. P. 54(b); Fed. R. App. P. 4. Accordingly, the Court HEREBY ORDERS that Plaintiff's motion for extension of time is denied as premature.

IT IS SO ORDERED.

20100920

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