Opinion
2:08-cv-01420-HDM-RAM.
February 1, 2010
ORDER
On July 16, 2009, this court entered an order dismissing petitioner Kenneth Baptiste's complaint at screening with leave to file an amended complaint as to defendants G. Dunn, C. Hobson, and D. Simpson.
On August 10, 2009, petitioner filed a motion to reconsider this court's July 16, 2009 order. He also filed a motion for an enlargement of time in which to file an amended complaint if the court should deny his motion to reconsider.
On September 1, 2009, this court entered an order denying petitioner's motion to reconsider and granting him a thirty (30) day extension of time in which to file an amended complaint.
On September 25, 2009, petitioner filed a notice of appeal. On October 22, 2009, the Ninth Circuit Court of Appeals ruled that it lacked jurisdiction over this matter because dismissal of a complaint with leave to amend is not appealable. See WMX Techs, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997).
On December 9, 2009, petitioner filed a document entitled "Notice of Intent", in which he elected to not file an amended complaint as directed by this court in its July 16, 2009 screening order. He also requested that this court enter an order dismissing this action.
On December 14, 2009, this court entered an order dismissing petitioner's complaint. However, at that time, the Rule 41(a) mandate from the Ninth Circuit Court of Appeals had not been issued. It was not until January 19, 2010 that the Court of Appeals entered a mandate stating "[t]he judgment of this Court, entered October 22, 2009, takes effect this date." This court signed the order on the mandate on January 22, 2010.
Accordingly, the court hereby grants petitioner an additional thirty (30) days from the date of this order in which to file an amended complaint should the petitioner elect to do so.
It is so ORDERED.