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Mitchell v. Traxler

United States Court of Appeals, Fourth Circuit

March 1, 2016

PAUL A. MITCHELL, Plaintiff-Appellant,
v.
WILLIAM B. TRAXLER, JR., et al, Defendants-Appellees.

Eastern District of Virginia (Richmond) No. 3:15-cv-00378-HEH, Eastern District of North Carolina, No. 5:15-cv-00399-H.

Paul A. Mitchell, Pro se Plaintiff-Appellant

APPELLANT'S MOTION FOR VOLUNTARY DISMISSAL OF APPEAL FOR LACK OF APPELLATE JURISDICTION OVER ONGOING CIVIL ACTION

Plaintiff-Appellant Paul A. Mitchell files this motion for voluntary dismissal of appeal pursuant to Federal Rules of Appellate Procedure 42(b). A dismissal of this appeal is required because the appealed civil action was transferred to the Eastern District of North Carolina where there is there is no final order or judgment.

PROCEDURAL HISTORY

On June 24, 2015, Plaintiff filed motion for leave to proceed in forma pauperis, complaint, motion for expedited hearing and preliminary injunction in the Eastern District of Virginia (Richmond). [Exh. p. 1, ECF #1]

On August 13, 2015, Judge Hudson issued order that "PARTIALLY DISMISSES the Plaintiffs Complaint and TRANSFERS the matter to the Eastern District of North Carolina." [Exh. p. 3-4]

Also on August 13, 2015, Judge Hudson transferred the case to the Eastern District of North Carolina. [Exh p. 2, 6]

On August 18, 2015, the Eastern District of North Carolina received transferred case (Civil Action No. 5:15-cv-399, and assigned Defendant Dever to adjudicate matter. [Exh. p. 6]

Oh September 22, 2015, Defendant Dever directed the clerk of the court to reassign case to Senior Judge Howard. [Exh. p. 6, 7]

As of the current date, Judge Howard had failed to discharge judicial duties on civil action and the case remains open. [Exh. p. 6]

CONCLUSION

There is no final judgment or order on civil actions 3:15-cv-378 or 5:15-cv-399. Court of appeals lack jurisdiction over lower court proceedings that are not final. Therefore, Plaintiff moves to voluntary dismiss this appeal because of this Appellate court's lack of jurisdiction.

Respectfully submitted this ...


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