John Banks v. State of Arizona, et al
| DAVID SHINN, Director, named as David L. Shinn, director Arizona Department of Corrections, UNKNOWN PARTY, named as facility health care administrator and STATE OF ARIZONA |
| JOHN J. BANKS |
| 20-16222 |
| June 23, 2020 |
| U.S. Court of Appeals, Ninth Circuit |
| Other |
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| Filing 10 Filed Appellant John J. Banks motion to reconsider Panel order of the Court filed on 07/23/2020. Deficiencies: None. [11785205] (RR) [Entered: 08/11/2020 02:06 PM] |
| Filing 9 Filed Appellant John J. Banks motion to proceed In Forma Pauperis. Deficiencies: None. [11777847] (RR) [Entered: 08/05/2020 09:16 AM] |
| Filing 8 Received copy of District Court order filed on 7/7/2020. IT IS ORDERED: (1) Plaintiffs Motion to Reconsider (Doc. 12) is construed as a Motion for Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. So construed the Motion is granted. (2) The June 1, 2020 Clerks Judgment (Doc. 10) is vacated. The Clerk of Court is directed to re-open this case. (3) Defendants Shinn and the State of Arizona must answer the First Amended Complaint. (4) The Clerk of Court must send Plaintiff a service packet including the First Amended Complaint (Doc. 11), this Order, and both summons and request for waiver forms for Defendants Shinn and the State of Arizona. (5) Plaintiff must complete6 and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. (6) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and First Amended Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). (7) The United States Marshal must retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. (8) The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure and Rule 4(j)(2) of the Federal Rules of Civil Procedure and Rule 4.1(c) of the Arizona Rules of Civil Procedure, as appropriate. The notice to LRCiv 16.2(b)(2)(B)(ii). (7) The United States Marshal must retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. (8) The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure and Rule 4(j)(2) of the Federal Rules of Civil Procedure and Rule 4.1(c) of the Arizona Rules of Civil Procedure, as appropriate. The notice toLRCiv 16.2(b)(2)(B)(ii). (7) The United States Marshal must retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. (8) The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure and Rule 4(j)(2) of the Federal Rules of Civil Procedure and Rule 4.1(c) of the Arizona Rules of Civil Procedure, as appropriate. The notice to LRCiv 16.2(b)(2)(B)(ii). (7) The United States Marshal must retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. (8) The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure and Rule 4(j)(2) of the Federal Rules of Civil Procedure and Rule 4.1(c) of the Arizona Rules of Civil Procedure, as appropriate. The notice toLRCiv 16.2(b)(2)(B)(ii). (7) The United States Marshal must retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. (8) The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure and Rule 4(j)(2) of the Federal Rules of Civil Procedure and Rule 4.1(c) of the Arizona Rules of Civil Procedure, as appropriate. The notice to(9) A Defendant who agrees to waive service of the Summons and First Amended Complaint must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 30 days of the date of the notice and request for waiver of service pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. (10) The Marshal must immediately file signed waivers of service of the summons. If a waiver of service of summons is returned as undeliverable or is not returned by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must: (a) personally serve copies the Summons, First Amended Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) and Rule 4(j)(2) of the Federal Rules of Civil Procedure, as appropriate; and (b) within 10 days after personal service is effected, file the return of service for Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, First Amended Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court. (11) Defendants Shinn and the State of Arizona must answer the First Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. (12) Any answer or response must state the specific Defendant by name on whose behalf it is filed. The Court may strike any answer, response, or other motion or paper that Case 2:20-cv-00459-DLR--CDB Document 16 Filed 07/07/20 Page 9 of 10 - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 does not identify the specific Defendant by name on whose behalf it is filed. (13) Plaintiff is granted 120 days from the filing date of this Order in which to discover by subpoena, or otherwise, the actual identity of the unknown Facility Health Care Administrator at ASPC-Lewis, and to file a notice of substitution providing that Defendants actual name. (14) The Clerk of Court must issue a subpoena in blank and send it to Plaintiff. [11775063]--[Edited 08/03/2020 by RR] (RR) [Entered: 08/03/2020 01:02 PM] |
| Filing 7 Filed order (SIDNEY R. THOMAS, MARY M. SCHROEDER and CONSUELO M. CALLAHAN) A review of the record demonstrates that this court lacks jurisdiction over this appeal because the district court vacated the judgment challenged in this appeal and reopened the case. Because the action is still pending in the district court, this appeal is dismissed for lack of jurisdiction. See 28 U.S.C. 1291. All pending motions are denied as moot. DISMISSED. [11763135] (WL) [Entered: 07/23/2020 09:29 AM] |
| Filing 6 Filed Appellant John J. Banks motion for expedited process/prelimiary injunction. Deficiencies: None [11762173] (RR) [Entered: 07/22/2020 01:37 PM] |
| Filing 5 Received Appellant John J. Banks notice of DC ruling and amended noa. . [11762136] (RR) [Entered: 07/22/2020 01:23 PM] |
| Filing 4 Received original and 3 copies of Appellant John J. Banks opening brief of 5 pages (Informal: Yes). Served on 07/09/2020. Major deficiency: proceedings are in abeyance, fees are due. Notified Appellant. [11762045] (LA) [Entered: 07/22/2020 12:40 PM] |
| Filing 3 Filed Appellant John J. Banks motion. Deficiencies: None. [11743275] (JFF) [Entered: 07/06/2020 04:05 PM] |
| Filing 2 Filed clerk order (Deputy Clerk: CO): The courts records reflect that the notice of appeal was filed during the pendency of a timely-filed motion listed in Federal Rule of Appellate Procedure 4(a)(4), and that motion is still pending in the district court. The June 18, 2020 notice of appeal is therefore ineffective until entry of the order disposing of the last such motion outstanding. See Fed. R. App. P. 4(a)(4). Accordingly, proceedings in this court are held in abeyance pending the district courts resolution of the pending June 2, 2020 motion to reconsider. See Leader Natl Ins. Co. v. Indus. Indem. Ins. Co., 19 F.3d 444, 445 (9th Cir. 1994). Within 14 days after the district courts ruling on the pending motion, appellant shall file a written notice in this court: (1) informing this court of the district courts ruling; and (2) stating whether appellant intends to prosecute this appeal. To appeal the district courts ruling on the post-judgment motion, appellant must file an amended notice of appeal within the time prescribed by Federal Rule of Appellate Procedure 4. The Clerk shall serve this order on the district court. [11736652] (CKP) [Entered: 06/29/2020 02:14 PM] |
| Filing 1 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL AND PRO SE APPELLANT. SEND MQ: No. The schedule is set as follows: Appellant John J. Banks opening brief due 08/17/2020. Appellees David Shinn, Director, State of Arizona and Unknown Party answering brief due 09/16/2020. Appellant's optional reply brief is due 21 days after service of the answering brief. [11730959] (WL) [Entered: 06/23/2020 02:21 PM] |
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