GAITHER v. WINCHELL

S.D. Georgia

GAITHER v. WINCHELL

DecidedMarch 24, 2020

Docket6:20-cv-00021

StatusUnknown

This text of GAITHER v. WINCHELL (GAITHER v. WINCHELL) is published on Counsel Stack Legal Research, covering District Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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GAITHER v. WINCHELL, (S.D. Ga. 2020).

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e 4 _ FILES U.S. DISTRICT COURT IN THE UNITED STATES DISTRICT COURT AUGUSTA DIY, FOR THE SOUTHERN DISTRICT OF GEOR@@AIAR 24 PH 3: 00 STATESBORO DIVISION _crerK cf. Hines 50. DIST. OF GA. RUSSELL GAITHER, ) Plaintiff, ) ) v. ) ) CV 620-021 DR. WINCHELL; DR. FAULKS; ) DR. OCCHIPINIT; MR. GRACH; and ) DR. GUL, ) ) Defendants. ) □

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate Judge’s Report and Recommendation, to which objections have been filed. (Doc. no. 15, pp. 2-6; doc. no. 17.) The Clerk of Court transmitted a Notice of Appeal to the Eleventh Circuit Court of Appeals based on the filing containing the objections. (See doc. nos. 10, 15, 16.) Plaintiff's appeal to the Eleventh Circuit regarding the transfer of the case from the Middle District of Georgia to the Southern District of Georgia does not divest this Court of jurisdiction to proceed. !

‘Although filing a notice of appeal generally deprives a district court of jurisdiction over the issues involved in an appeal, “a notice of appeal filed with respect to a non- appealable order does not have any effect on the district court’s jurisdiction.” United States v. Riolo, 398 F. App’x 568, 571 (11th Cir. 2010) (per curiam) (citing United States v. Hitchmon, 602 F.2d 689, 694 (Sth Cir. 1979) (en banc)). The order transferring this case to the Southern District of Georgia is not interlocutorily appealable. See McIntosh v. Cooper Tire & Rubber Co., No. 1:08-CV-164 (WLS), 2009 WL 10674375, at *1 (M.D. Ga. Oct. 27, 2009).

a 4 Accordingly, the Court OVERRULES the objections and ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion. Therefore, the Court DENIES Plaintiffs request to proceed in forma pauperis (doc. no. 6), DENIES AS MOOT the motion for appointment of counsel (doc. no. 9), and DISMISSES this: action without prejudice. If Plaintiff wishes to proceed with the claims raised in this lawsuit, he must initiate a new lawsuit, which would require submission of a new complaint. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). SO ORDERED this A Krvay of March, 2020, at Augusta, Georgia.

RANDAL BALL, CAIEF JUDGE STATES DISTRICT COURT PRN DISTRICT OF GEORGIA

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e 4 _ FILES U.S. DISTRICT COURT IN THE UNITED STATES DISTRICT COURT AUGUSTA DIY, FOR THE SOUTHERN DISTRICT OF GEOR@@AIAR 24 PH 3: 00 STATESBORO DIVISION _crerK cf. Hines 50. DIST. OF GA. RUSSELL GAITHER, ) Plaintiff, ) ) v. ) ) CV 620-021 DR. WINCHELL; DR. FAULKS; ) DR. OCCHIPINIT; MR. GRACH; and ) DR. GUL, ) ) Defendants. ) □

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate Judge’s Report and Recommendation, to which objections have been filed. (Doc. no. 15, pp. 2-6; doc. no. 17.) The Clerk of Court transmitted a Notice of Appeal to the Eleventh Circuit Court of Appeals based on the filing containing the objections. (See doc. nos. 10, 15, 16.) Plaintiff's appeal to the Eleventh Circuit regarding the transfer of the case from the Middle District of Georgia to the Southern District of Georgia does not divest this Court of jurisdiction to proceed. !

‘Although filing a notice of appeal generally deprives a district court of jurisdiction over the issues involved in an appeal, “a notice of appeal filed with respect to a non- appealable order does not have any effect on the district court’s jurisdiction.” United States v. Riolo, 398 F. App’x 568, 571 (11th Cir. 2010) (per curiam) (citing United States v. Hitchmon, 602 F.2d 689, 694 (Sth Cir. 1979) (en banc)). The order transferring this case to the Southern District of Georgia is not interlocutorily appealable. See McIntosh v. Cooper Tire & Rubber Co., No. 1:08-CV-164 (WLS), 2009 WL 10674375, at *1 (M.D. Ga. Oct. 27, 2009).

a 4 Accordingly, the Court OVERRULES the objections and ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion. Therefore, the Court DENIES Plaintiffs request to proceed in forma pauperis (doc. no. 6), DENIES AS MOOT the motion for appointment of counsel (doc. no. 9), and DISMISSES this: action without prejudice. If Plaintiff wishes to proceed with the claims raised in this lawsuit, he must initiate a new lawsuit, which would require submission of a new complaint. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). SO ORDERED this A Krvay of March, 2020, at Augusta, Georgia.

RANDAL BALL, CAIEF JUDGE STATES DISTRICT COURT PRN DISTRICT OF GEORGIA

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