Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) Glenn Kelley, et al., ) ) Defendants. ) ___________________________________) Rodney Allen Kelley, CV 04-103-PHX-SRB (MS)

ORDER

Before the Court is the Fletcher Defendants' "Response in Opposition to Plaintiff's Motion for Appointment of Counsel" and "Cross-Motion to Dismiss and/or Reconsider Order Granting Plaintiffs' Motion to Proceed In Forma Pauperis" filed August 3, 2005. The Court notes that no motion for appointment of counsel is currently pending before the Court. Therefore, it is unclear why Defendants submitted a response. Defendants request dismissal of Plaintiffs' complaint as a sanction for falsely claiming that he qualifies for in forma pauperis status. Defendants further state that they were not served with Plaintiff's motion to proceed in forma pauperis, or they would have objected to it when it was first filed. To the extent that Defendants seek reconsideration of the Court's July 19, 2005 Order, which granted Plaintiff in forma pauperis status for the purpose of serving Glenn Kelley, the Court will deny Defendants' motion. Other than concluding that Plaintiff most certainly has the necessary funds, Defendants provide no evidence that Plaintiff committed perjury in his statements to the Court regarding his indigency.
Case 2:04-cv-00103-SRB-ECV Document 32 Filed 08/15/2005 Page 1 of 2

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To the extent that Defendants have combined a motion to dismiss with a motion for reconsideration, and Defendants seek a ruling by the undersigned regarding the motion to dismiss, the Court will deny Defendants' motion without prejudice as improperly filed. Defendants e-filed a response to a motion for appointment of counsel, but did not designate, as separate motions, the motion to reconsider and a motion to dismiss. Therefore, neither the motion to dismiss nor motion for reconsideration show as pending motions in this case. If Defendants seek to reassert a motion to dismiss for the assigned district judge to decide,1 or to file formal objections with the assigned district judge regarding the Court's July 19, 2005 Order, Defendants must do so properly. See CM/ECF Procedures Manual at 37-43. IT IS ORDERED that: 1. Defendants' "Cross-Motion to Dismiss and/or Reconsider Order Granting Plaintiffs' Motion to Proceed In Forma Pauperis" filed August 3, 2005, to the extent the document seeks reconsideration of the Court's July 19, 2005 Order, is DENIED. 2. Defendants' "Cross-Motion to Dismiss" filed August 3, 2005, is DENIED without prejudice for failure to properly file the motion according to CM/ECF procedure. DATED this 15th day of August, 2005.

The undersigned does not have jurisdiction pursuant to 28 U.S.C. § 636 to decide a dispositive motion to dismiss.
Case 2:04-cv-00103-SRB-ECV Document 32 Filed 08/15/2005 Page 2 of 2

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