Opinion
3:23-cv-00231-SLG
06-13-2024
TIDIANE KONE, Plaintiff, v. BAKER, Officer, Defendant.
ORDER
SHARON L. GLEASON, UNITED STATES DISTRICT JUDGE
On June 12, 2024, the Ninth Circuit Court of Appeals referred Plaintiff Tidiane Kone's Notice of Appeal to the district court for the limited purpose of determining whether in forma pauperis status should continue for the interlocutory appeal that Mr. Kone has filed, appealing this Court' denial of his motion for a preliminary injunction. See Docket 20. This order also addresses Mr. Kone's motion at Docket 17 for a stay of the district court's proceedings while he pursues his interlocutory appeal.
The Court finds that the appeal is frivolous, regardless of whether the underlying case may have merit. This is because the preliminary injunction motion sought an order removing Mr. Kone from the facility in which he was housed at the time of the motion, which was Spring Creek Correctional Center, a maximum security state facility. Subsequently, in January 2024, Mr. Kone filed a notice of change of address indicating that he had been moved to the Mat-Su Pretrial Facility, a medium security state facility, where he remains at this time. Therefore, as was explained to Mr. Kone in the Screening Order that denied the motion for preliminary injunctive relief, the request for preliminary injunctive relief is moot. See Docket 14 at 6, citing Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975), and Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1997). The record does not demonstrate any reasonable expectation that Mr. Kone will be returned to Spring Creek while this case is pending. For these reasons, the Court determines that in forma pauperis status should not apply to this interlocutory appeal.
If Mr. Kone were to be transferred back to Spring Creek, he could seek preliminary injunctive relief at that time. See Rule 62(d), Federal Rules of Civil Procedure.
At Docket 17, Mr. Kone moved for a stay of the district court action while he pursues his interlocutory appeal. But Mr. Kone has also filed a Third Amended Complaint, as directed by the Screening Order, that seeks damages from one defendant based on allegations of excessive force. There is no just reason why that damages claim cannot proceed at this time. See generally Rule 8, Federal Rules of Appellate Procedure. Accordingly, the motion for a stay at Docket 17 is DENIED and the Court will be screening the Third Amended Complaint at Docket 15 in due course.