Larry Smith v. Gonzales et al

Filing 86

ORDER DENYING Plaintiff's Motion to Certify Interlocutory Appeal 72 , signed by District Judge Dale A. Drozd on 8/18/2020. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY SMITH,

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Plaintiff,

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No. 1:17-cv-00436-DAD-GSA (PC)

ORDER DENYING PLAINTIFF’S MOTION
TO CERTIFY INTERLOCUTORY APPEAL

v.
SERGEANT J. GONZALES, Program
Sergeant at CSP-Corcoran; et al.,

(Doc. No. 72)

Defendant.

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Plaintiff Larry Smith is a state prisoner proceeding pro se and in forma pauperis with this

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civil rights action pursuant to 42 U.S.C. § 1983. On February 19, 2020, the court adopted in part

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the assigned magistrate judge’s November 15, 2019 findings and recommendations, granting in

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part defendants’ motion for summary judgment and dismissing certain claims and defendants

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from this action. (Doc. Nos. 36, 52, 57.) Plaintiff then moved for reconsideration of the court’s

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order on February 28, 2020, which the court denied on March 12, 2020. (Doc. Nos. 61, 63.)

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While his motion for reconsideration was pending, plaintiff also appealed the court’s order to the

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Ninth Circuit Court of Appeals on March 11, 2020. (Doc. No. 64.) However, he failed to seek—

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and thus receive—the required certification from this court for an interlocutory appeal from the

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court’s order. See 28 U.S.C. § 1292(b). Defendants subsequently moved for dismissal of the

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appeal,1 leading plaintiff to file the now pending motion to certify the court’s February 19, 2020

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order for interlocutory appeal. (Doc. No. 72.)

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LEGAL STANDARD

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The district court may certify an order for interlocutory appeal when it involves “a

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controlling question of law as to which there is substantial ground for difference of opinion” and

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“an immediate appeal from the order may materially advance the ultimate termination of the

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litigation.” 28 U.S.C. § 1292(b). If these grounds are not met, the circuit court lacks jurisdiction

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to hear the matter. See 28 U.S.C. § 1291 (granting jurisdiction generally to the circuit courts only

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over “final decisions” of the district courts); Couch v. Telescope, Inc., 611 F.3d 629, 632–33 (9th

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Cir. 2010) (noting that the statutory restrictions of 28 U.S.C. § 1292(b) are jurisdictional). This

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statutory provision “was intended primarily as a means of expediting litigation by permitting

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appellate consideration during the early stages of litigation of legal questions which, if decided in

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favor of the appellant, would end the lawsuit. . . .” United States v. Woodbury, 263 F.2d 784, 787

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(9th Cir. 1959). Ultimately, however, the question need not be dispositive of the lawsuit for an

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interlocutory appeal to be appropriate. Id.

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Certification of a question for interlocutory appeal requires the district court to find that

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all of the following requirements under § 1292(b) are met: (1) there is a controlling question of

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law; (2) there is substantial ground for difference of opinion about that question of law; and (3) an

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immediate appeal may materially advance the ultimate termination of the litigation. Couch, 611

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F.3d at 633. If any of the requirements are not met, then the order certifying the questions is

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jurisdictionally defective. Id. Certification of interlocutory appeals is the exception, not the rule,

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and therefore § 1292(b) “must be construed narrowly.” James v. Price Stern Sloan, Inc., 283

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F.3d 1064, 1068 n.6 (9th Cir. 2002).

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While the instant motion was pending, the Ninth Circuit granted defendants-appellees’ motion
to dismiss and dismissed plaintiff’s appeal for lack of jurisdiction. (Doc. No. 79.)
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DISCUSSION
To the extent this court’s February 19, 2020 order granted in part defendants’ motion for

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summary judgment, it was so based on a review of the factual record. Specifically, the court

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found as a factual matter that (1) “plaintiff did not exhaust his administrative remedies with

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respect to Sgt. Gonzales’s alleged attempt to retaliate against him by issuing him an RVR or

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recommending that he be transferred” and (2) “plaintiff did not allege in his inmate appeal, and

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therefore could not have exhausted, his [] claim that C/O Fritz failed to protect him from C/O

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Johnson’s alleged use of excessive force.”2 (See Doc. Nos. 57 at 4; 63 at 2–3.) There was no

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dispute the PLRA’s administrative exhaustion requirements applied in such situations as a matter

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of law. Plaintiff now argues that interlocutory appeal of both findings is appropriate under 28

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U.S.C. § 1292(b). (Doc. No. 72.) Plaintiff is plainly incorrect.

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As explained above, § 1292(b) requires that there be “substantial ground for difference of

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opinion” on “a controlling question of law.” 28 U.S.C. § 1292(b) (emphasis added). This means

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that the court of appeals is restricted to deciding matters of law, rather than reviewing issues of

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fact. See, e.g., George v. Morris, 736 F.3d 829, 836 (9th Cir. 2013) (finding that, as a court of

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appeals, it was confined in an interlocutory appeal to deciding the question before it “as a matter

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of law”); Bibeau v. Pac. Nw. Research Found. Inc., 188 F.3d 1105, 1113 (9th Cir. 1999), opinion

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amended on denial of reh’g, 208 F.3d 831 (9th Cir. 2000) (“[A]n interlocutory appeal will not lie

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. . . if the district court determines that there are genuine issues of fact involved.”); Rieve v.

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Coventry Health Care, Inc., 870 F. Supp. 2d 856, 879 (C.D. Cal. 2012) (declining to certify an

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interlocutory appeal that did not involve a pure question of law).3 Other circuits have adopted a

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similar view on interlocutory appeals. See Ahrenholz v. Board of Trs., 219 F.3d 674, 675–77 (7th

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The court notes that the individual referred to as C/O Fritz answered the complaint as defendant
Esquerra, so the court will refer to her as such moving forward.
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The Ninth Circuit has noted a narrow exception to the general rule that interlocutory appeals are
permitted only for pure questions of law; when at least one pure legal question is present, the
court may “resolve all questions material to the order.” Steering Comm. v. United States, 6 F.3d
572, 575–76 (9th Cir. 1993) (reaching both a legal issue of the standard of care and the
application of that standard to the facts of the case).
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Cir. 2000) (observing that Congress was referring to a pure question of law in § 1292(b), because

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“if a case turned on a pure question of law, something the court of appeals could decide quickly

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and cleanly without having to study the record, the court should be enabled to do so without

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having to wait till the end of the case.”); Park W. Galleries, Inc. v. Hochman, 692 F.3d 539, 543

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(6th Cir. 2012) (“On interlocutory appeal, we do not review the district court’s findings of fact,

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and instead consider only pure questions of law.”) (quotations omitted); Kennedy v. St. Joseph’s

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Ministries, Inc., 657 F.3d 189, 195 (4th Cir. 2011) (an interlocutory appeal is appropriate under

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§ 1292(b) when the court is “faced with a pure question of law”); McFarlin v. Conseco Servs.,

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LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) (“To summarize, § 1292(b) appeals were intended,

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and should be reserved, for situations in which the court of appeals can rule on a pure, controlling

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question of law without having to delve beyond the surface of the record in order to determine the

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facts.”)
Here, however, plaintiff merely disputes the court’s order on factual grounds. In his

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pending motion, plaintiff appears to assert that defendants never actually asserted their innocence

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as a factual matter and that the court therefore erred by dismissing the relevant claims and

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defendants from this action. (Doc. No. 72 at 2.) However, plaintiff’s claims were dismissed as a

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result of his failure to comply with the PLRA’s procedural requirements, which the court only

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found after a review of the factual record. (See Doc. Nos. 57 at 4; 63 at 2–3.)
Because plaintiff has failed to identify any “substantial ground for difference of opinion”

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on “a controlling question of law,” see 28 U.S.C. § 1292(b) (emphasis added), his motion to

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certify the court’s February 19, 2020 order for interlocutory appeal (Doc. No. 72) is hereby

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denied.

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IT IS SO ORDERED.

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Dated:

August 18, 2020
UNITED STATES DISTRICT JUDGE

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