Messina v. Bigelow, Warden

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This memorandum decision is subject to revision before publication in the Pacific Reporter. IN THE UTAH COURT OF APPEALS ----ooOoo---Richard Messina, Petitioner and Appellant, v. Alfred Bigelow, Warden, Respondent and Appellee. ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION Case No. 20100848-CA F I L E D (January 13, 2011) 2011 UT App 10 ----Sixth District, Manti Department, 100600211 The Honorable Marvin Bagley Attorneys: Richard Messina, Gunnison, Appellant Pro Se ----- Before Judges Davis, McHugh, and Roth. PER CURIAM: ¶1 Richard Messina appeals the district court's order dismissing his petition for an extraordinary writ without prejudice. This matter is before the court on a sua sponte motion for summary disposition. We affirm. ¶2 A petition for an extraordinary writ may be granted only "where no other plain, speedy, and adequate remedy is available." Utah R. Civ. P. 65B(a); see also Ogden City Corp. v. Adam, 635 P.2d 70, 71 (Utah 1981). When filing a petition for an extraordinary writ, the petitioner shall "attach to the petition a copy of the pleadings filed by the petitioner in any prior proceeding that adjudicated the legality of the restraint." Utah R. Civ. P. 65B(b)(3). ¶3 Messina's petition for an extraordinary writ sought review of administrative grievance proceedings regarding his conditions of confinement. The district court dismissed Messina's petition for an extraordinary writ without prejudice because Messina failed to attach copies of the necessary documents arising from prior proceedings adjudicating the legality of his restraint. See id. The district court also determined that Messina failed to comply with rule 65B(b)(4) by setting forth his arguments in a separate memorandum. See id. R. 65B(b)(4). ¶4 Messina fails to demonstrate that the district court erred by dismissing his petition for an extraordinary writ without prejudice due to his failure to comply with the requirements of rule 65B(b). Because the district court dismissed the petition without prejudice, Messina may re-file the petition with a separate memorandum containing his legal arguments and attaching the relevant documents arising from "any prior proceeding that adjudicated the legality of the restraint." Id. R. 65B(b)(3). Affirmed. ______________________________ James Z. Davis, Presiding Judge ______________________________ Carolyn B. McHugh, Associate Presiding Judge ______________________________ Stephen L. Roth, Judge 20100848-CA 2

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