Wheeler v. Sayler, et al.
Annotate this CaseLeRoy Wheeler appeals from orders dismissing without prejudice his 42 U.S.C. § 1983 civil rights action against prison officials and denying his request for reconsideration. In February 2021, Wheeler commenced this § 1983 action against North Dakota State Penitentiary officials (“State”) by serving a summons and complaint upon the State. Wheeler did not file the summons and complaint with the district court at that time, and has never served a notice of filing the complaint upon the State. In March 2021, Wheeler moved for a “continuance” to extend his time to reply to the State’s “answer,” which was served on Wheeler, but was never filed with the court. In February 2022, eleven months after Wheeler moved for a “continuance” in this case, the district court filed a “notice of intent to dismiss,” stating the court’s intent to dismiss the case without prejudice on its own motion unless a party requested, within three weeks, that the case remain open. None of the parties responded, and the court dismissed the action without prejudice. Wheeler requested reconsideration, alleging that he did not receive notice of intent to dismiss. The court denied the request to reconsider. Because these orders were not appealable, the North Dakota Supreme Court dismissed the appeal.
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