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Semeneck v. Ahlin

June 16, 2010

JOHN P. SEMENECK, PLAINTIFF,
v.
AHLIN, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR APPLICATION TO APPEAL and DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL

(Doc. 16)

I. Procedural Background

Plaintiff, John P. Semeneck ("Plaintiff"), is a civil detainee proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 30, 2009, the Court dismissed Plaintiff's Complaint and Supplement Complaint, with leave to amend, for failure to state any claims upon which relief may be granted. (Doc. 11.) Plaintiff filed a motion for reconsideration on November 20, 2009 (Doc. 12), which was denied on November 23, 2009 (Doc. 13). On December 21, 2009, Plaintiff filed a motion for application to appeal both the October 30, 2009 order screening and dismissing the Complaint and Supplemental Complaint, with leave to amend, and the November 23, 2009 order denying reconsideration thereof. (Doc. 16.) Ten days later, Plaintiff filed his First Amended Complaint.*fn1 (Doc. 18.)

This Court construes and analyzes Plaintiff's motion for application to appeal (Doc. 16) as a request for certification of an interlocutory appeal.

II. Interlocutory Appeal

A. Legal Standards

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 a question to be certified for appeal, when a district court certifies that an order not otherwise appealable under section 1292(b) "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." U.S. v. W.R. Grace, 526 F.3d 499, 522 (9th Cir. 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, 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.

Step one under section 1292(b) is at the district court level 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 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 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. Though not stated as such, the practical application of the permission to appeal sought by Plaintiff requests that this Court amend its order dismissing the Complaint and Supplemental Complaint to permit him to pursue an appeal pursuant to section 1292(b).

Step two under section 1292(b) is before the court of appeals for permission to appeal.

U.S. v. W.R. Grace, 526 F.3d 522 ("once the district [court] opens the gate to 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 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, ...


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