Thomason v. State of Alabama Home Builders Licensure Board (JOINT ASSIGN)(MAG+)

Filing 95

ORDERED: 1. Plaintiff's motion for permission to appeal (Doc. # 92 ) is DENIED. 2. Plaintiff's motion for leave to appeal in forma pauperis (Doc. # 93 ) is DENIED as moot. 3. Plaintiff's motion to consolidate (Doc. # 92 ) is DENIED. 4. This case is REFERRED back to the Magistrate Judge for further proceedings in accordance 28 U.S.C. § 636. Signed by Chief Judge William Keith Watkins on 6/20/2016. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
STEVEN CLAYTON THOMASON,

)
)
Plaintiff,
)
)
v.
) CASE NO. 2:15-CV-26-WKW
) (WO)
STATE OF ALABAMA HOME
)
BUILDERS LICENSURE BOARD, et )
al.,
)
)
Defendants.
)
ORDER
Before the court is Plaintiff Steven Clayton Thomason’s motion for

permission to appeal pursuant to 28 U.S.C. § 1292(b), which the court construes as
containing a motion to consolidate.

(Doc. # 92.)

Also before the court is

Plaintiff’s motion for leave to appeal in forma pauperis. (Doc. # 93.) Having
considered the motions, the court concludes that they are due to be denied.
The first item from which Plaintiff seeks an interlocutory appeal is the “no
decision” on Plaintiff’s motion for an injunction (Doc. # 83) ordering a stay of
state court criminal proceedings in Elmore County, Alabama. (Doc. # 92 at 1.)
That motion has only recently come under submission for recommendation by the
Magistrate Judge, and no ruling has been entered on the motion. Because the
district court has not yet ruled on the motion, and because, in any event, no

permission is needed to appeal from a district court’s refusal to enter an injunction,
28 U.S.C. § 1292(a)(1), the motion for permission to appeal (Doc. # 92) is due to
be denied with respect to this issue.
As to the remaining issues regarding which Plaintiff seeks appellate review,
Plaintiff has failed to identify the interlocutory orders of the district judge from
which he seeks permission to appeal. To the extent that any interlocutory orders
have been entered with respect to any of those issues, the motion for permission to
appeal (Doc. # 92) is due to be denied because Plaintiff has failed to make any
showing (1) that any of those issues involve a controlling question of law as to
which there is substantial ground for difference of opinion or (2) that an immediate
appeal from the order may materially advance the ultimate termination of the
litigation.

28 U.S.C. § 1292 (setting forth the requirements for permissive

interlocutory appeals from interlocutory orders of a district judge).
In addition, to the extent that Plaintiff seeks an order from this court
consolidating this case with the criminal case from Elmore County (Doc. # 92 at
3), the motion is due to be denied. Plaintiff removed the criminal case to this
court. State of Alabama v. Steven Clayton Thomason, Case No. 2:15-cv-327; State
of Alabama v. Steven Clayton Thomason, Case No. 2:16-cv-417. Both times, the
state court criminal case was remanded because the removal was untimely and
because Plaintiff did not demonstrate that the removal fell within the narrow
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circumstances under which 28 U.S.C. § 1443 allows for removal of a criminal
prosecution.

Therefore, the state criminal case is not before this court, and

consolidation with this action is not possible or permissible. See Fed. R. Civ. P.
42(a) (allowing for consolidation of “actions before the court”).
The motion for leave to appeal in forma pauperis is due to be denied
because no appeal will be permitted at this time.
Accordingly, it is ORDERED:
1.

Plaintiff’s motion for permission to appeal (Doc. # 92) is DENIED.

2.

Plaintiff’s motion for leave to appeal in forma pauperis (Doc. # 93) is

DENIED as moot.
3.

Plaintiff’s motion to consolidate (Doc. # 92) is DENIED.

4.

This case is REFERRED back to the Magistrate Judge for further

proceedings in accordance 28 U.S.C. § 636
DONE this 20th day of June, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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