Bryant v. Gallagher et al

Filing 166

ORDER Denying Plaintiff's 156 Motion for this Court to Amend it's 9/13/2014 Order Pursuant to Appellate Rule 5(a)(3) to Include the Permission to Appeal signed by District Judge Lawrence J. O'Neill on 11/06/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN DARNELL BRYANT

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Plaintiff,
v.
P. GALLAGHER, et al.,
Defendants.

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Case No.: 1:11-cv-00446-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION FOR
THIS COURT TO AMEND ITS 9-13-14 ORDER
PURSUANT TO APPELLATE RULE 5(a)(3) TO
INCLUDE THE PERMISSION TO APPEAL
(ECF No. 156)

Plaintiff Kevin Darnell Bryant (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s first amended complaint, filed on July 5, 2011, against Defendant Romero for deliberate

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indifference to serious medical needs in violation of the Eighth Amendment; and against Defendants

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Gallagher and Romero for conspiracy, retaliation in violation of the Eighth Amendment and failure to

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protect in violation of the Eighth Amendment.

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On August 11, 2014, Plaintiff filed a motion “for injunctive relief from the previous Orders by

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the magistrate judge and sanctions regarding discovery” and “to disqualify the magistrate judge for

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judicial bias and prejudice.” (ECF No. 143, p. 1.) On September 15, 2014, the Court denied

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Plaintiff’s requests for injunctive relief, reconsideration of the Magistrate Judge’s non-dispositive

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orders and disqualification of the Magistrate Judge. (ECF No. 152.)

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On September 25, 2014, Plaintiff filed the instant motion requesting that the Court amend its

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order to grant him permission to immediately appeal the denial of his request for injunctive relief

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against the Magistrate Judge pursuant to Federal Rule of Appellate Procedure 5(a)(3). (ECF No. 156.)

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Rule 5(a)(3) allows the district court to amend its order in response to a party’s motion to include the

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required permission for appeal. Fed. R. App. P. 5(a)(3).

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On September 25, 2014, Plaintiff also filed a notice of appeal. (ECF No. 157.) Plaintiff’s

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appeal was processed to the Ninth Circuit on September 29, 2014. (ECF No. 158.) On October 28,

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2014, the Ninth Circuit dismissed the appeal for lack of jurisdiction. The Ninth Circuit also

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considered Plaintiff’s September 25, 2014 filing as a petition for permission to appeal pursuant to 28

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U.S.C. § 1292(b). The Ninth Circuit denied the petition without prejudice to renewal upon

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compliance with the requirements of 28 U.S.C. § 1292(b). (ECF No. 165.)

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The Court now considers Plaintiff’s request that the Court amend its September 15, 2014 order

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to grant him permission to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). An

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interlocutory appeal of a non-final order may be certified if the district court determines that “such

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order involves a controlling question of law as to which there is substantial ground for difference of

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opinion and that an immediate appeal from the order may materially advance the ultimate termination

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of the litigation.” 28 U.S.C. § 1292(b). “Section 1292(b) is a departure from the normal rule that only

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final judgments are appealable, and therefore must be construed narrowly.” James v. Price Stern

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Sloan, Inc., 283 F.3d 1064, 1067 n. 6 (9th Cir. 2002). The purpose of the section is to “facilitate

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disposition of the action by getting a final decision on a controlling legal issue sooner, rather than

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later” in order to “save the courts and the litigants unnecessary trouble and expense.” United States v.

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Adam Bros. Farming, Inc., 369 F.Supp.2d 1180, 1182 (C.D. Cal. 2004) (citation omitted).

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Plaintiff has not demonstrated that there is a controlling question of law at stake resulting from

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the Court’s decision that the Magistrate Judge is entitled to judicial immunity in connection with

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Plaintiff’s request for injunctive relief against her or its decision the Magistrate Judge should not be

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disqualified. Plaintiff also has not demonstrated that there is a controlling question of law at stake

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regarding the Court’s discovery orders. An interlocutory appeal of such orders will not facilitate

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disposition of the action or materially advance ultimate termination of this action. Instead, it will

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further delay resolution of this action and result in unnecessary trouble and expense.

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For the reasons stated, Plaintiff’s request that the Court amend its September 15, 2014 order

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and grant him permission for an immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b) is

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HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

November 6, 2014

UNITED STATES DISTRICT JUDGE

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