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Bryant v. P. Gallagher

United States District Court, E.D. California

February 2, 2015

KEVIN DARNELL BRYANT, Plaintiff,
v.
P. GALLAGHER, et al., Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL (ECF No. 173)

LAWRENCE J. O'NEILL, District Judge.

I. Procedural Background

Plaintiff Kevin Darnell Bryant ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 17, 2011. This action currently proceeds against Defendant Romero for deliberate indifference to serious medical needs in violation of the Eighth Amendment; and against Defendants Gallagher and Romero for conspiracy, retaliation in violation of the Eighth Amendment and failure to protect in violation of the Eighth Amendment.

On August 11, 2014, Plaintiff filed a motion for injunctive relief from the Magistrate Judge's orders and to disqualify the Magistrate Judge for judicial bias and prejudice. (ECF No. 143, p. 1.) On September 15, 2014, the undersigned denied Plaintiff's request for injunctive relief, reconsideration of the Magistrate Judge's non-dispositive orders and disqualification of the Magistrate Judge. (ECF No. 152.)

On September 25, 2014, Plaintiff requested that the Court amend its order and grant him permission to immediately appeal the denial of his request for injunctive relief against the Magistrate Judge pursuant to Federal Rule of Appellate Procedure 5(a)(3). (ECF No. 156.) On the same date, Plaintiff filed a notice of appeal, which was processed to the Ninth Circuit on September 29, 2014. (ECF Nos. 157, 158.)

On October 28, 2014, the Ninth Circuit dismissed the appeal for lack of jurisdiction. The Ninth Circuit also considered Plaintiff's September 25, 2014 filing as a petition for permission to appeal pursuant to 28 U.S.C. § 1292(b). The Ninth Circuit denied the petition without prejudice to renewal upon compliance with the requirements of 28 U.S.C. § 1292(b). (ECF No. 165.)

On November 6, 2014, the Court construed Plaintiff's September 25, 2014 request to amend its order as a request for permission to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The undersigned denied Plaintiff's request for permission to file an immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (ECF No. 166.)

On November 17, 2014, Plaintiff filed the instant motion for permission to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) of the Court's September 15 order denying his motion for injunctive relief against the Magistrate Judge, reconsideration of the Magistrate Judge's non-dispositive order and disqualification of the Magistrate Judge. (ECF No. 173.)

The Ninth Circuit issued its mandate on November 20, 2014. (ECF No. 174.)

II. Plaintiff's Motion for Certification of Interlocutory Appeal

A. Legal Standard

An interlocutory appeal of a non-final order may be certified if the district court determines 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." 28 U.S.C. § 1292(b). "Section 1292(b) is a departure from the normal rule that only final judgments are appealable, and therefore must be construed narrowly." James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n. 6 (9th Cir. 2002). The purpose of the section is to "facilitate disposition of the action by getting a final decision on a controlling legal issue sooner, rather than later" in order to "save the courts and the litigants unnecessary trouble and expense." United States v. Adam Bros. Farming, Inc., 369 F.Supp.2d 1180, 1182 (C.D. Cal. 2004) (citation omitted).

B. Discussion

The Court has previously denied Plaintiff permission for an immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (ECF No. 166.) By his current motion, Plaintiff again has failed to demonstrate that the Court's September 15 order involved a controlling question of law to which there is a substantial ground for difference of opinion and ...


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