The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER DENYING PLAINTIFF'S REQUEST FOR PERMISSION TO APPEAL
Plaintiff, Thomas Hightower ("Plaintiff"), a state prisoner, has filed this civil rights action seeking relief under 42 U.S.C. § 1983.
On April 27, 2009, Defendant Figueroa filed an unenumerated motion to dismiss for failure to exhaust administrative remedies under Rule 12(b) of the Federal Rules of Civil Procedure ("Rule 12(b)"). (Doc. 97.) On July 10, 2009, the Magistrate Judge issued Findings and Recommendations to grant the motion. (Doc. 116.) The Findings and Recommendations were adopted in full by the District Judge by order issued August 31, 2009, and the federal claim against Defendant Figueroa was dismissed without prejudice for Plaintiff's failure to exhaust administrative remedies. (Doc. 121.) On September 15, 2009, Plaintiff filed a petition for "Permission to Appeal This Court's Order Adopting Magistrate's Findings on August 29, 2009 [Doc. 121] Dismissing Claims Against Defendant Figueroa Under FRAP Rule 5.1; 28 USC §§ 636, 1292(b)." (Doc. 126.) Defendant Figueroa has not filed an opposition. The matter is deemed submitted.
This Court construes and analyzes Plaintiff's Petition for Permission to Appeal this Court's Order Adopting Magistrate's Findings on August 29, 2009 (Doc. 126) as both a request for certification of an interlocutory appeal and for entry of judgment.
When an issue is unresolved and interlocutory resolution could materially advance the termination of the litigation, 28 U.S.C. § 1292(b) ("section 1292(b)") permits the district court judge to certify the question:
(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order ... "Section 1292(b) provides for interlocutory appeals from otherwise not immediately appealable orders, if conditions specified in the section are met, 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). Section 1292(b) requires a two step application process. Step one is before the district court for certification of the order -- which is discretionary. S. Repr. 2434, 85th Cong., 2d Sess., 1958, in 1958 U.S. Code Cong. & Admin. News 5255, 5257. Indeed, permissive interlocutory appeal is not available absent written certification by the district court. Credit Suisse v. U.S. District Ct., 130 F.3d 1342, 1346 (9th Cir. 1997). Step two is before the court of appeals for permission to appeal. "[A] party must obtain certification from both the district court and the court of appeals to bring an interlocutory appeal." City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001). Thus, this Court has the authority to entertain the petition for certification of an order for interlocutory order, because certification by the district court is the first step in section 1292(b) procedure.
A district court may amend its order to add findings for an interlocutory appeal. Rule 5 of the Federal Rules of Appellate Procedure governs appeals by permission under section 1292(b):
(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.
If a district court determines to certify an order for interlocutory appeal because it involves a controlling question of law, after the order is initially entered, the proper procedure is to amend the order to contain the required certification. Haas v. Pittsburgh Nat. Bank, 627 F.2d 677, 679 n.1 (3d Cir. 1980). A certification order that is not directly framed as an amendment of the original order may nonetheless be treated as an amendment. Id.
1. Section 1292(b) Requirements
Section 1292(b) imposes three criteria that must be met before a district court may 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 Cement Antitrust Litig. (MDL ...