(PC) Simmons v. Akanno et al, No. 1:2009cv00659 - Document 29 (E.D. Cal. 2011)

Court Description: ORDER Denying Request for Leave to Appeal Screening Orders 25 , signed by Magistrate Judge Gerald B. Cohn on 4/22/11. (Gonzalez, R)
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(PC) Simmons v. Akanno et al Doc. 29 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CHRISTOPHER SIMMONS, 11 Plaintiff, JONATHAN AKANNO, et al., 14 1:09-cv-00659-GBC (PC) ORDER DENYING REQUEST FOR LEAVE TO APPEAL SCREENING ORDERS v. 12 13 CASE NO. (ECF No. 25) Defendants. / 15 16 ORDER 17 18 I. PROCEDURAL HISTORY 19 Plaintiff Christopher Simmons (“Plaintiff”) is a state prisoner proceeding pro se and 20 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his 21 Complaint on April 14, 2009 and consented to Magistrate Judge jurisdiction on June 8, 22 23 2009. (ECF Nos. 1 & 8.) Plaintiff then filed a First Amended Complaint on April 8, 2010. (ECF No. 10.) No other parties have appeared in this action. 24 25 26 Plaintiff’s First Amended Complaint was dismissed with leave to amend for failure to state a claim on December 8, 2010. (ECF No. 20.) Plaintiff filed his Second Amended 27 1 Dockets.Justia.com 1 2 3 Complaint which was also dismissed for failure to state a claim on February 18, 2011. (ECF Nos. 23 & 24.) Plaintiff filed his Third Amended Complaint on March 28, 2011. (ECF No. 28.) The Court has not yet screened Plaintiff’s most recent amended complaint. 4 Pending before the Court is Plaintiff’s “Objections and Motion/Request for Leave to 5 6 Appeal Orders of December 8, 2010 and February 18, 2011”. (ECF No. 25.) This Court 7 construes and analyzes Plaintiff’s motion/request for leave as a request for certification of 8 an interlocutory appeal. 9 III. 10 ARGUMENT Plaintiff objects to the Court’s Screening Orders filed December 8, 2010 and 11 12 13 February 18, 2011 and asks for leave to appeal those orders. Plaintiff states that he disagrees with the Court’s finding that he can not bring his claim under the American’s with 14 Disabilities Act and his claim for inadequate medical care in the same action. He also 15 states that his complaints must be liberally construed. 16 17 As to his request for leave to seek appellate review, Plaintiff states that: “1) The Court’s Order(s) a) conclusively determines Plaintiff’s right to bring multiple claims in a 18 19 20 single action; b) review is necessary to resolve an important issue separate from the merits of the action; and c) the Court’s Order indicated that failure to comply with, in all due 21 respect, the pleading standard under Federal Rule of Civil Procedure 8(a) will result in 22 dismissal with prejudice, and that all causes of action not alleged in the Amended 23 Complaint is ‘waived,’ and would not be reviewable, depriving Plaintiff of his substantive 24 right to relief.” (ECF No. 24, p. 2.) 25 26 //// 27 2 1 2 3 IV. Legal Standard and Analysis When an issue is unresolved and interlocutory resolution could materially advance the termination of the litigation, 28 U.S.C. § 1292(b) permits a question to be certified for 4 5 appeal, when a district court certifies that an order not otherwise appealable under section 6 1292(b) “involves a controlling question of law as to which there is substantial ground for 7 difference of opinion and that an immediate appeal from the order may materially advance 8 the ultimate termination of the litigation.” U.S. v. W.R. Grace, 526 F.3d 499, 522 (9th Cir. 9 10 2008); 28 U.S.C. § 1292(b). “Section 1292(b) provides for interlocutory appeals from otherwise not immediately appealable orders, if conditions specified in the section are met, 11 12 13 14 the district court so certifies, and the court of appeals exercises its discretion to take up the request for review.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 74, n.10 (1996). Thus, section 1292(b) requires a two step application process. 15 Step one is at the district court level for certification of the order – which is 16 discretionary. S. Repr. 2434, 85th Cong., 2d Sess., 1958, in 1958 U.S. Code Cong. & 17 Admin. News 5255, 5257. Indeed, permissive interlocutory appeal is not available absent 18 19 20 written certification from the district court. Credit Suisse v. U.S. District Ct., 130 F.3d 1342, 1346 (9th Cir. 1997). A district court may amend its order to add findings for an 21 interlocutory appeal. Rule 5 of the Federal Rules of Appellate Procedure governs appeals 22 by permission under section 1292(b): 23 24 25 26 27 (a) Petition for Permission to Appeal ... (3) If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party’s motion, to include the required permission or statement. 3 1 2 If a district court certifies an order for interlocutory appeal because it involves a 3 controlling question of law, after the order is initially entered, the proper procedure is to 4 amend the order to contain the required certification. Haas v. Pittsburgh Nat. Bank, 627 5 F.2d 677, 679 n.1 (3d Cir. 1980). A certification order that is not directly framed as an 6 amendment of the original order may nonetheless be treated as an amendment. Id. 7 Though not stated as such, the practical application of the permission for leave to appeal 8 9 10 sought by Plaintiff requests that this Court amend its orders dismissing the Complaints to permit him to pursue an appeal pursuant to section 1292(b). 11 Step two under section 1292(b) is before the court of appeals for permission to 12 appeal. U.S. v. W.R. Grace, 526 F.3d at 522 (“once the district [court] opens the gate to 13 14 this court, we exercise complete, undeferential review to determine whether the court properly found that § 1292(b)’s certification requirements were satisfied.”) “[A] party must 15 16 obtain certification from both the district court and the court of appeals to bring an 17 interlocutory appeal.” City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 18 F.3d 882, 885 (9th Cir. 2001). Thus, this Court has the authority to entertain the petition 19 for certification of an order for interlocutory order, because Plaintiff consented to Magistrate 20 Judge jurisdiction1 and certification by the district court is the first step in section 1292(b) 21 procedure. 22 23 Section 1292(b) imposes three criteria that must be met before a district court may 24 25 26 27 1 Plaintiff consented to m agistrate judge jurisdiction for all proceedings in this case. (ECF No. 8.) Therefore, the Magistrate Judge has authority to conduct all proceedings in the district court in this action. See Rule 305 and Appendix A(k)(4) of the Local Rules of the Eastern District of California, Fed. R. Civ. P. 73(a). 4 1 2 3 certify an interlocutory appeal: the order must state “(1) that there is a controlling question of law; (2) that there is substantial grounds for difference of opinion; and (3) that an immediate appeal may materially advance the ultimate termination of the litigation.” In re 4 5 6 Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1982), aff’d, 459 U.S. 1190 (1983); 28 U.S.C. § 1292(b). 7 “Section 1292(b) is meant to be used sparingly, and appeals under it are, 8 accordingly, hen’s-teeth rare.” Camacho v. Puerto Rico Ports Authority, 369 F.3d 570, 573 9 (1st Cir. 2004). “Because permitting piecemeal appeals is bad policy, permitting liberal use 10 of § 1292(b) interlocutory appeals is bad policy.” McFarlin v. Conesco Services, LLC, 381 11 12 13 F.3d 1251, 1259 (11th Cir. 2004). “Congress did not intend 28 U.S.C. § 1292(b) to serve an error-correction function.” Weber v. U.S. Trustee, 484 F.3d 154, 159, n.3 (2nd Cir. 14 2007). 15 postponing appellate review until after the entry of a final judgment.” Coopers & Lybrand 16 v. Livesay, 437 U.S. 463, 475 (1978). 17 Only “exceptional circumstances justify departure from the basic policy of 1. Controlling Question of Law 18 An issue is “controlling” if its resolution could materially affect the outcome of the 19 20 litigation. In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d at 1026 (trial judge’s 21 recusal is a collateral issue). Section 1292(b) appeals should be reserved for “situations 22 in which the court of appeals can rule on a pure, controlling question of law without having 23 to delve beyond the surface of the record in order to determine the facts,” and requires that 24 “resolution of a controlling legal question would serve to avoid a trial or otherwise 25 substantially shorten trial.” McFarlin, 381 F.3d at 1259. “The Supreme Court has 26 27 recognized that 28 U.S.C. § 1292(b) acts as a safety valve for ‘serious legal questions 5 1 2 3 taking the case out of the ordinary run.’” Estate of Kennedy v. Bell Helicopter Textron, Inc., 283 F.3d 1107, 1116 (9th Cir. 2002) quoting Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 (1994). 4 5 6 “The antithesis of a proper § 1292(b) appeal is one that turns on whether there is a genuine issue of fact, or whether the district court properly applied settled law to the facts 7 . . . .” Id. “The legal question must be stated at a high enough level of abstraction to lift 8 the question out of the details of the evidence or facts of a particular case and give it 9 general relevance to other cases in the same area of law.” Id. The term “question of law” 10 does not mean the application of settled law to fact. Ahrenholz v. Board of Trustees of the 11 12 13 University of Illinois, 219 F.3d 674, 676 (7th Cir. 2000). Nor does it mean any question, the decision of which requires rooting through the record in search of the facts or of genuine 14 issues of fact. See id. Instead, what the framers of § 1292(b) had in mind is more of an 15 abstract legal issue or what might be called one of “pure” law, matters the court of appeals 16 “can decide quickly and cleanly without having to study the record.” Id. at 677. 17 Plaintiff disagrees with, and apparently seeks appellate review of, this Court’s 18 screening orders and the Court’s application of procedural law (specifically Federal Rule 19 20 of Civil Procedure 8) to Plaintiff’s factual allegations within his First Amended Complaint 21 and Second Amended Complaint. 22 determination that he cannot proceed on his ADA claims and his medical claims in the 23 same action is improper and should be reviewed by the appellate court. Reviewing this 24 Plaintiff seems to be arguing that this Court’s issue would require extensive factual review, essentially a re-screening of Plaintiff's factual 25 allegations in his First and Second Amended Complaints which is the “antithesis of a 26 27 proper § 1292(b) appeal,” McFarlin, 381 F.3d at 1259, and does not involve a controlling 6 1 2 3 question of law so as to justify certification by this Court for appeal under section 1292(b). 2. Difference of Opinion “In determining whether to grant review, we should ask if there is substantial dispute 4 5 6 about the correctness of any of the pure law premises the district court actually applied in its reasoning leading to the order sought to be appealed.” McFarlin, 381 F.3d at 1259. 7 When an appellate court is in “complete and unequivocal” agreement with a district court, 8 there is no “substantial ground for difference of opinion.” McFarlin, 381 F.3d at 1258. 9 10 Plaintiff does not show a difference of legal opinion as to the issues he challenges. Rather, the only difference of opinion raised by the present motion is Plaintiff’s difference 11 12 13 14 of opinion with this Court as to whether the factual allegations in the First and Second Amended Complaints stem from the same transaction, occurrence, or series of transactions and should be brought in the same action. 15 A district court has a duty “to analyze the strength of the arguments in opposition 16 to the challenged ruling when deciding whether the issue for appeal is truly one on which 17 there is a substantial ground for dispute.” Max Daetwyler Corp. v. Meyer, 575 F.Supp. 280, 18 283 (E.D. Pa. 1983). This Court analyzed the strength of Plaintiff’s factual allegations to 19 20 state any cognizable claims, and construed all inferences in the light most favorable to 21 Plaintiff. Substantial ground for dispute did not exist at that time. A current review again 22 reveals a lack of substantial ground for dispute, and Plaintiff presents none. Instead, 23 Plaintiff relies on the difference between his view (that he should be allowed to proceed 24 with all claims presented in the Amended Complaints) and this Court’s ruling dismissing 25 his Amended Complaints with leave to amend for failure to state any cognizable claims. 26 27 Plaintiff’s arguments thus do not give rise to a substantial ground for dispute. 7 1 2 3 3. Material Advancement A party seeking interlocutory certification must show that an immediate appeal may “materially advance,” rather than impede or delay, ultimate termination of the litigation. In 4 5 6 re Cement Antitrust Litig. (MDL No. 296), 673 F.2d at 1026. “When litigation will be conducted in substantially the same manner regardless of our decision, the appeal cannot 7 be said to materially advance the ultimate termination of the litigation.” White, 43 F.3d at 8 378-379. 9 10 Plaintiff does not address whether a section 1292(b) appeal in his favor would materially advance this action. Rather, without arguing as much, Plaintiff appears to 11 12 13 14 believe that this Court’s decisions upon screening of the Amended Complaints were incorrect and that the Ninth Circuit will rule in Plaintiff’s favor to correct the error and allow Plaintiff to proceed on all claims alleged. 15 Plaintiff fails to persuade this Court that a section 1292(b) appeal will materially 16 advance this action; rather, it appears that a section 1292(b) appeal would increase 17 chances of delay. Even if this case was certified for interlocutory appeal by this Court, the 18 Ninth Circuit accepted it for appeal, and ruled in Plaintiff’s favor, there would most likely be 19 20 a remand to this Court to screen the Third Amended Complaint – which is the precise 21 posture of the action on this very date. An orderly appeal can be taken from an entered 22 judgment, if after screening, the Third Amended Complaint and any subsequent amended 23 complaints which Plaintiff is granted leave to file are found not to state any cognizable 24 claims so as to result in this action’s ultimate dismissal. 25 Thus, this Court declines to certify an interlocutory appeal for Plaintiff as he failed 26 27 to present any issue that involves a controlling question of law which would not require the 8 1 2 3 appellate court to delve beyond the surface of the record in order to determine the facts; he fails to show that there is substantial grounds for difference of opinion; and an immediate appeal will not materially advance the ultimate termination of the litigation. 4 5 IV. Conclusion and Order 6 Based on the foregoing, Plaintiffs “Objections and Motion/Request for Leave to 7 Appeal Orders of December 8, 2010 and February 18, 2011,” filed on March 17, 2011, is 8 DENIED as a request for certification of interlocutory appeal under 28 U.S.C. § 1292(b). 9 IT IS SO ORDERED. 10 11 Dated: 1j0bbc April 22, 2011 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 9