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Victor M. Correa v. R.L. Gower

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 17, 2010

VICTOR M. CORREA, PLAINTIFF,
v.
R.L. GOWER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned. See docket # 4, filed on March 26, 2010. Plaintiff's original complaint was dismissed by order, filed on June 2, 2010 (docket # 6), with leave to amend. Plaintiff's amended complaint was thereafter dismissed by order, filed on August 23, 2010, with leave to file a second amended complaint within twenty-eight days.

Plaintiff did not file a second amended complaint. Rather, plaintiff filed an appeal to the Ninth Circuit, on October 1, 2010 (docket # 13). That appeal was "dismissed for lack of jurisdiction" on December 9, 2010 because the order appealed from was "not final or appealable" (docket # 16). Despite the purported interlocutory appeal, the district court retained jurisdiction because this circuit has long "recognized an exception to the general rule that a valid notice of appeal divests the district court of jurisdiction over all but tangential matters," when the appeal is patently frivolous. Marks v. Clarke, 102 F.3d 1012, 1018 n. 8 (9th Cir. 1996), citing Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. F.2d 104, 105 (9th Cir. 1992) ("frivolous or forfeited appeal does not automatically divest the district court of jurisdiction."). See also, U. S. v. Powell, 24 F.3d 28 (9th Cir. 1994); U.S. v. LaMere, 951 F.2d 1106, 1108 (9th Cir. 1991); U.S. v. Claiborne, 727 F.2d 842 (9th Cir. 1984). As the appeal, based on an unappealable order, was without merit, plaintiff was not relieved of his obligation to file a proposed second amended complaint timely. Plaintiff has failed to do so and the time for doing so has long since expired.

Plaintiff shall file the second amended complaint within twenty days; no extensions shall be granted.

Accordingly, IT IS ORDERED that a second amended complaint shall be filed.

GGH:009 corr0603.ord2

20101217

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