Devine v. Walker

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION

ROBERT DEVINE PLAINTIFF v. Civil No. 4:8-CV-04156 WARDEN JEFFIE WALKER, et. al. DEFENDANTS

ORDER This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. Currently before the Court is Plaintiff’s Motion Under Federal Rule 60(b)(1);(3) for Relief from Magistrate Order (ECF No. 32) and Motion to Join Defendants. (ECF No. 33).

Plaintiff’s case was stayed and administratively terminated on May 3, 2019, due to Plaintiff’s incarceration within the Texas Department of Criminal Justice (“TDCJ”). (ECF No. 30). Plaintiff now seeks relief from this Order. The Motion was referred to the undersigned for decision by the Honorable Susan O. Hickey, Chief United States District Judge. (ECF No. 32).

Plaintiff’s reliance on Fed. R. Civ. Pro. 60 is misplaced, as the Order staying the case is not a final Order or Judgment but is instead a stay that may be removed when Plaintiff is either released from TDCJ custody or transferred to a correctional facility in the State of Arkansas. ( ECF No. 30). See Kreditverein der Bank Austria Creditanstalt fur Niederosterreich und Bergenland v. Nejezchleba, 477 F.3d 942, 946 (8th Cir. 2007) (“The only time that an order granting a stay will be considered a final order is if [the stay] is tantamount to a dismissal and [the stay] effectively ends the litigation.”) (Alterations in original) (citation omitted). The Court has already set forth its reasons for staying this case, and Plaintiff has not persuaded the undersigned that it should reconsider that Order. Plaintiff’s Motion for Relief from Order (ECF No. 32) is DENIED. This matter shall remain stayed until such time as Plaintiff is released from custody or transferred to a correctional facility in the State of Arkansas.

Plaintiff’s other Motion to Join Defendants (ECF No. 33) is DENIED without prejudice to Plaintiff renewing it, if desired and appropriate, when this matter is reopened.

IT IS SO ORDERED this 6th day of August 2019. /s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE