00-2233 -- Bailey v. Romero -- 02/14/2001

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD-BLAINE: BAILEY, Plaintiff-Appellant,
v.	No. 00-2233
JEFF ROMERO, Second Judicial District Attorney; IRMA PLUEMER, Assistant District Attorney; RONALD GRENKO, New Mexico Bar licensed attorney; PATRICIA A. MADRID, New Mexico Attorney General, all officially and individually, Defendants-Appellees.	(D.C. No. CIV-00-242) (D.N.M.)

ORDER AND JUDGMENT^(*)

Before HENRY, BRISCOE and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiff Donald-Blaine: Bailey, appearing pro se and proceeding in forma pauperis, appeals the district court's dismissal of his action. We dismiss the appeal as moot.

Plaintiff commenced his action in federal district court by filing an "Emergency Request for Hearing; Temporary Restraining Order; and Declaratory Judgment." Plaintiff sought a temporary restraining order against the district attorney's office to stay proceedings in his state criminal case until it was finally determined whether he was a United States citizen, and if he was found not to be a United States citizen, "whether or not [plaintiff] is still amenable to procedural due process as is mandated by the Fourteenth Amendment." Record, Doc. 1 at 19. Defendants filed a motion to dismiss based on immunity and failure to state a claim. Defendants also raised a comity argument by asserting the court should not exercise its jurisdiction given the pendency of the state court criminal action. The district court granted defendants' motion to dismiss.

Defendants filed a suggestion of mootness with this court on November 6, 2000. Attached to the pleading is a copy of the state district court's order of August 1, 2000, dismissing the state criminal action because plaintiff was found incompetent to stand trial.

We agree with defendants' suggestion and dismiss this appeal as moot. See F.E.R. v. Valdez, 58 F.3d 1530, 1533 (10th Cir. 1995) (dismissing claim as moot because the explicit objective of the proposed injunction had been met).

The appeal is DISMISSED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

FOOTNOTES
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^*.This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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