Andre V. Powell v. BRUCE LEMMON, Superintendent

This opinion was released initially in typescript form. å
In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3376
ANDRE V. POWELL,
Petitioner-Appellant,
v.
BRUCE LEMMON, Superintendent,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:08-cv-00355-LJM-JMS–Larry J. McKinney, Judge.
MOTION TO DISMISS APPEAL
FEBRUARY 12, 2010å
RIPPLE, Circuit Judge (in chambers). Andre Powell
brought a habeas action challenging his prison’s imposi-
tion of disciplinary sanctions. He pleaded himself out
of court, however, by revealing in his petition that the
prison already had vacated its discipline order and had

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2 No. 09-3376
scheduled a new hearing. The district court consequently
dismissed the petition as moot. Mr. Powell moved the
court to reconsider; it declined to do so. He also moved
for relief from judgment. The court denied this motion.
Mr. Powell’s appeal is timely only as to the denial of his
motion for relief from judgment.
By order dated February 8, 2010, this court, agreeing
with the district court, denied permission to proceed in
forma pauperis. In that order, the court gave Mr. Powell
14 days to pay the required docketing fee or to with-
draw his appeal.
Before me today is a motion filed by Mr. Powell on the
same day as our earlier order. Since Mr. Powell is incar-
cerated, it no doubt left his control on an earlier date. In
that motion, Mr. Powell states that the dispute is moot
and asks that we dismiss his appeal for lack of jurisdiction.
This motion falls within the ambit of F.R.A.P. 42(b) and
an order may be entered by the Clerk dismissing the
appeal. Because Mr. Powell took this action well within
the time permitted for the withdrawal of his appeal
without the payment of the docketing fee, he is not
liable for that fee, and none should be assessed.
Accordingly, the Clerk is ordered to dismiss this
appeal under F.R.A.P. 42(b). In conformity with the
court’s earlier order, no docketing fee is to be paid.
2-24-10

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