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Jesse T. Moten v. Darrel G. Adams

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 26, 2011

JESSE T. MOTEN,
PLAINTIFF,
v.
DARREL G. ADAMS, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFF'S MOTION FOR CASE STATUS REVIEW AND DENYING PLAINTIFF'S MOTION FOR A HEARING ON ENDANGERMENT OF LIFE (ECF Nos. 60 and 62)

Plaintiff Jesse T. Moten ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

On August 11, 2010, the Court dismissed Plaintiff's First Amended Complaint for failure to state a claim upon which relief could be granted. (Order, ECF No. 46.) Plaintiff filed a Second Amended Complaint on March 11, 2011. (Am. Compl., ECF No. 55.) On May 18, 2011, the Court dismissed all of the claims in Plaintiff's Second Amended Complaint except for Plaintiff's excessive force claim against Defendant Gonzales.

(Order, ECF No. 59.) No parties have yet appeared.

Before the Court are: (1) Plaintiff's May 23, 2011 Motion for a Request for a Case Status Review (ECF No. 60) and (2) Plaintiff's June 10, 2011 Motion for a Hearing on Endangerment of Life (ECF No. 62). Each motion will be addressed in turn below.

I. MOTION FOR A REQUEST FOR A CASE STATUS REVIEW

On May 23, 2011, Plaintiff filed a Motion for a Request for a Case Status Review and for a Copy of the Docket Sheet to be Forwarded to the Plaintiff ("Motion for Case Status Review"). (ECF No. 60.) Plaintiff appears to be asking for the Court to review his Objections (ECF. Nos. 57 and 58) to the Magistrate Judge's Findings and Recommendations (ECF No. 56) that all of Plaintiff's claims except for his excessive force claim against Defendant Gonzales be dismissed with prejudice. On May 18, 2011, the District Judge assigned to this matter adopted the Magistrate Judge's Findings and Recommendations, and this Order was served on Plaintiff by mail on the same day. (ECF No. 59.) Plaintiff's Motion for Case Status Review was filed on May 23, 2011, and since it does not refer to the District Judge's May 18, 2011 Order, it appears Plaintiff did not receive that Order prior to filing his Motion for Case Status Review.

Accordingly, since Plaintiff appears to be asking for the Court to review his Objections, which the Court has already done, the portion of his Motion for Case Status Review simply asking for an update on his Objections is DENIED as moot.

The portion of Plaintiff's Motion for Case Status Review asking the Court to forward Plaintiff a copy of the docket sheet of this matter is GRANTED, and the Clerk's Office is ordered to forward a copy of the docket sheet to Plaintiff.

II. MOTION FOR A HEARING ON ENDANGERMENT OF LIFE

On June 10, 2011, Plaintiff filed a Motion for a Hearing on Endangerment of Life. (ECF No. 62.) Plaintiff appears to be appealing the assigned Magistrate Judge's Findings and Recommendations (ECF No. 56) which were adopted by the assigned District Judge on May 18, 2011 (Order, ECF No. 59). Plaintiff relies on California state appellate cases, and states that there was an abuse of discretion that must be corrected. This leads the Court to believe that Plaintiff is attempting to file an appeal with the United States District Court of the Eastern District of California. Judicial notice is taken that Plaintiff filed an appeal with the Ninth Circuit Court of Appeals on June 13, 2011. (Notice, ECF No. 64.)

Accordingly, since Plaintiff's Motion for a Hearing on Endangerment of Life appears to be an appeal to the District Court of the decisions rendered by that Court, it seeks appeal in the wrong forum and is DENIED.

III. CONCLUSION AND ORDER

For the reasons stated above, the Court hereby ORDERS the following:

1. The portion of Plaintiff's Motion for a Request for a Case Status Review and for a Copy of the Docket Sheet (ECF No. 60) asking for a case status review is DENIED as moot;

2. The portion of Plaintiff's Motion for a Request for a Case Status Review and for a Copy of the Docket Sheet (ECF No. 60) asking for a copy of the docket sheet to be forwarded to Plaintiff is GRANTED, and the Clerk's Office is ordered to forward a copy of the docket sheet to Plaintiff; and

3. Plaintiff's Motion for a Hearing on Endangerment of Life (ECF No. 62) is DENIED.

IT IS SO ORDERED.

ci4d6

20110726

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