Davis v. Kelso et al

Filing 71

ORDER DENYING 70 Plaintiff's Motion to Certify Issues for Appellate Review signed by District Judge Lawrence J. O'Neill on 2/6/2014. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

CHARLES T. DAVIS,

12

Plaintiff,

13
14

v.
CLARK J. KELSO, et al.,

15

Defendants.

16

ORDER DENYING PLAINTIFF’S MOTION TO
CERTIFY ISSUES FOR APPELLATE REVIEW
[ECF No. 70]

pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff’s motion for the Court to certify certain issues for

19
20

Case No.: 1:10-cv-01184-LJO-SAB (PC)

Plaintiff Charles T. Davis is appearing pro se and in forma pauperis in this civil rights action

17
18

)
)
)
)
)
)
)
)
)
)

appellate review, filed February 5, 2014.
Plaintiff contends the Magistrate Judge’s order dismissing his complaint with leave to amend

21
22

for failure to state a cognizable claim (which was upheld by the denial of Plaintiff’s motion for

23

reconsideration) was in direct contradiction of the holding in Crawford-El v. Britton, 523 U.S. 579

24

(1998). Plaintiff requests the Court certify this issue for appellate review. Plaintiff’s request must be

25

denied.

26

“When a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order,

27

it does not transfer jurisdiction to the appellate court. . . . ” Nascimento v. Dummer, 508 F.3d 905,

28

908 (9th Cir. 2007). In this instance, Plaintiff’s motion to appeal the Magistrate Judge’s December 16,
1

1

2013, order dismissing Plaintiff’s complaint with leave to amend, is not immediately appealable, see

2

WMX Techs. v. Miller, 104 F.3d 1133, 1137 (9th Cir. 1997) (dismissal with leave to amend is not a

3

dismissal of the underlying action); see also Montes v. United States, 37 F.3d 1347, 1350 (9th Cir.

4

1994) (noting distinction between dismissal of a complaint and dismissal of the underlying action; De

5

Tie v. Orange County, 152 F.3d 1109, 1111 (9th Cir. 1998) (same), and Plaintiff’s motion to certify

6

the above-mention issue for appellate review must be DENIED.

7

IT IS SO ORDERED.

8
9

Dated:

/s/ Lawrence J. O’Neill

February 6, 2014

UNITED STATES DISTRICT JUDGE

10
11
12
13
14

15
16
17
18
19
20
21
22
23
24
25
26
27
28
2