Bettencourt v. Parks et al

Filing 102

ORDER DENYING 101 Motion for Leave to File Notice of Appeal signed by Magistrate Judge Barbara A. McAuliffe on 12/13/2021. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY RAY BETTENCOURT,

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Plaintiff,

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ORDER DENYING MOTION FOR LEAVE
TO FILE NOTICE OF APPEAL

v.

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Case No. 1:16-cv-00150-DAD-BAM (PC)

PARKER, et al.,

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(ECF No. 101)
Defendants.

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Plaintiff Gary Ray Bettencourt (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s claims of deliberate indifference in violation of the Eighth Amendment against

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Defendant Crooks for pulling two teeth that did not need to be pulled, and against Defendants

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Parker and Guzman for filing down six healthy teeth with a dental tool used for drilling cavities.

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Currently before the Court is Plaintiff’s motion for leave to file a notice of appeal, filed

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December 10, 2021. (ECF No. 101.) Although difficult to understand, it appears Plaintiff is

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seeking leave to file a notice of appeal in the instant action. Plaintiff has attached a copy of the

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Court’s October 8, 2021 order construing Plaintiff’s filings as a motion for summary judgment,

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denying the motion without prejudice to re-filing, and extending the deadline for Plaintiff to re-

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file a motion for summary judgment. (ECF No. 90.) Defendants have not had an opportunity to

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file a response, but the Court finds a response unnecessary. The motion is deemed submitted.
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Local Rule 230(l).
To the extent Plaintiff is seeking a certificate of appealability pursuant to Federal Rule of

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Appellate Procedure 22(b), Plaintiff is advised that while certificates of appealability are required

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in habeas corpus actions, they are not needed in a civil rights action pursuant to 42 U.S.C. § 1983,

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such as this one. Once judgment is entered in this action, if Plaintiff wishes to appeal the

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judgment, he should file a notice of appeal in accordance with the Federal Rules of Appellate

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Procedure. See Fed. R. App. P. 3 & 4.

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To the extent Plaintiff is requesting permission to file an interlocutory appeal of the
Court’s October 8, 2021 order, the following legal standards apply.
An interlocutory appeal of a non-final order may be certified if the district court

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

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

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

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departure from the normal rule that only final judgments are appealable, and therefore must be

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construed narrowly.” James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002).

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The purpose of the section is to “facilitate disposition of the action by getting a final decision on a

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controlling legal issue sooner, rather than later” in order to “save the courts and the litigants

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unnecessary trouble and expense.” United States v. Adam Bros. Farming, Inc., 369 F. Supp. 2d

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1180, 1182 (C.D. Cal. 2004) (citation omitted).

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“An issue is ‘controlling’ if its resolution could materially affect the outcome of the

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litigation.” Simmons v. Akanno, No. 1:09-cv-00659-GBC (PC), 2011 WL 1566583, at *3 (E.D.

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Cal. Apr. 22, 2011) (citing In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026

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(9th Cir. 1981)). In addition, “[t]he legal question must be stated at a high enough level of

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abstraction to lift the question out of the details of the evidence or facts of a particular case and

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give it general relevance to other cases in the same area of law.” McFarlin v. Conesco Servs.,

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LLC, 381 F.3d 1251, 1259 (11th Cir. 2004). “The antithesis of a proper § 1292(b) appeal is one

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that turns on whether there is a genuine issue of fact, or whether the district court properly applied

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settled law to the facts[.]” Id.
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It appears that Plaintiff is seeking review of the Court’s decision to deny his motion for

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summary judgment without prejudice, and allowing him to re-file his motion for summary

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judgment. Plaintiff may also be seeking review of the Court’s prior orders denying his requests to

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set this case for a settlement conference or for an order requiring Defendants to settle this matter

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with Plaintiff. (See ECF No. 101, pp. 4–5.) Neither of these issues presents an appropriate basis

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for an interlocutory appeal, as they do not present controlling legal questions that would facilitate

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disposition of the action or materially advance the ultimate termination of this action by securing

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a final decision on a controlling legal issue. See Adam Bros. Farming, 369 F. Supp. 2d at 1182.

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Accordingly, Plaintiff’s motion for leave to file a notice of appeal, (ECF No. 101), is
HEREBY DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 13, 2021

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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