Bryant v. Gallagher et al

Filing 175

ORDER Denying Plaintiff's Motion For Certification Of Interlocutory Appeal (ECF No. 173 ), signed by District Judge Lawrence J. O'Neill on 2/2/2015. (Fahrney, 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,

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v.
P. GALLAGHER, et al.,

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Defendants.

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Case No.: 1:11-cv-00446-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION FOR
CERTIFICATION OF INTERLOCUTORY
APPEAL
(ECF No. 173)

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I.

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

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 17, 2011. This action

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currently proceeds against Defendant Romero for deliberate indifference to serious medical needs in

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violation of the Eighth Amendment; and against Defendants Gallagher and Romero for conspiracy,

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retaliation in violation of the Eighth Amendment and failure to protect in violation of the Eighth

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Amendment.

Procedural Background

On August 11, 2014, Plaintiff filed a motion for injunctive relief from the Magistrate Judge’s

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orders and to disqualify the Magistrate Judge for judicial bias and prejudice. (ECF No. 143, p. 1.) On

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September 15, 2014, the undersigned denied Plaintiff’s request for injunctive relief, reconsideration of

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the Magistrate Judge’s non-dispositive orders and disqualification of the Magistrate Judge. (ECF No.

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152.)
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On September 25, 2014, Plaintiff requested that the Court amend its order and grant him

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permission to immediately appeal the denial of his request for injunctive relief against the Magistrate

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Judge pursuant to Federal Rule of Appellate Procedure 5(a)(3). (ECF No. 156.) On the same date,

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Plaintiff filed a notice of appeal, which was processed to the Ninth Circuit on September 29, 2014.

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(ECF Nos. 157, 158.)

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On October 28, 2014, the Ninth Circuit dismissed the appeal for lack of jurisdiction. The

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Ninth Circuit also considered Plaintiff’s September 25, 2014 filing as a petition for permission to

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appeal pursuant to 28 U.S.C. § 1292(b). The Ninth Circuit denied the petition without prejudice to

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

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On November 6, 2014, the Court construed Plaintiff’s September 25, 2014 request to amend its

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order as a request for permission to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The

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undersigned denied Plaintiff’s request for permission to file an immediate interlocutory appeal

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pursuant to 28 U.S.C. § 1292(b). (ECF No. 166.)

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On November 17, 2014, Plaintiff filed the instant motion for permission to file an interlocutory

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appeal pursuant to 28 U.S.C. § 1292(b) of the Court’s September 15 order denying his motion for

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injunctive relief against the Magistrate Judge, reconsideration of the Magistrate Judge’s non-

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dispositive order and disqualification of the Magistrate Judge. (ECF No. 173.)

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

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II.

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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

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that “such order involves a controlling question of law as to which there is substantial ground for

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difference of opinion and that an immediate appeal from the order may materially advance the

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ultimate termination of the litigation.” 28 U.S.C. § 1292(b). “Section 1292(b) is a departure from the

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normal rule that only final judgments are appealable, and therefore must be construed narrowly.”

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James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n. 6 (9th Cir. 2002). The purpose of the section

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is to “facilitate disposition of the action by getting a final decision on a controlling legal issue sooner,

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rather than later” in order to “save the courts and the litigants unnecessary trouble and expense.”
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United States v. Adam Bros. Farming, Inc., 369 F.Supp.2d 1180, 1182 (C.D. Cal. 2004) (citation

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omitted).

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B. Discussion
The Court has previously denied Plaintiff permission for an immediate interlocutory appeal

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pursuant to 28 U.S.C. § 1292(b). (ECF No. 166.) By his current motion, Plaintiff again has failed to

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demonstrate that the Court’s September 15 order involved a controlling question of law to which there

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is a substantial ground for difference of opinion and that an immediate appeal would materially

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advance the ultimate termination of this action.

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Plaintiff believes that his request for injunctive relief against the Magistrate Judge involves a

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controlling question of law. The Court denied Plaintiff’s request for injunctive relief against the

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Magistrate Judge based on judicial immunity. (ECF No. 152, p. 3.) Judges are absolutely immune

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from liability for damages based on acts performed in their official capacities. Ashelman v. Pope, 793

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F.2d 1072, 1075 (9th Cir. 1986) (en banc). Furthermore, absolute immunity “is not limited to

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immunity from damages, but extends to actions for declaratory, injunctive and other equitable relief.”

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Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996) (superseded by statute on other grounds).

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Plaintiff asserts that judicial immunity is not a bar to prospective injunctive relief against a

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judicial officer pursuant to the holding of the United States Supreme Court. Presumably, Plaintiff is

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referring to the Supreme Court’s decision in Pulliam v. Allen, 446 U.S. 552, 541, 104 S.Ct. 1970,

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1981 (1984). Pulliam examined, in part, whether judicial immunity barred an award of injunctive

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relief under section 1983. Id. at 527. The Supreme Court found that judicial immunity was not a bar

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to prospective injunctive relief against a state judge acting in her official capacity. Id. at 541-42.

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However, in 1996, subsequent to the Supreme Court’s decision in Pulliam, Congress amended

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section 1983 to prohibit the grant of injunctive relief against any judicial officer, state or federal,

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acting in his or her official capacity “unless a declaratory decree was violated or declaratory relief was

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unavailable.” 42 U.S.C. § 1983. There is no assertion that the Magistrate Judge in this action violated

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a declaratory decree or that declaratory relief was unavailable. Therefore, Plaintiff has not established

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that there is a controlling question of law on which there are substantial grounds for difference of

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opinion regarding the Magistrate Judge’s absolute immunity for acts performed in her official

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capacity.

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To the extent Plaintiff disagrees with the remainder of the Court’s determination regarding

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discovery and disqualification of the Magistrate Judge, this is not a sufficient basis for an interlocutory

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appeal. Plaintiff has not demonstrated that there is a controlling question of law at stake. Further, an

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appeal of such orders will not facilitate disposition of the action by getting a final decision on a legal

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issue or materially advance ultimate termination of this action.

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Accordingly, Plaintiff’s motion for certification of immediate interlocutory appeal pursuant to
28 U.S.C. § 1292(b) is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

February 2, 2015

UNITED STATES DISTRICT JUDGE

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