Eichler v. Sherbin, et al
Filing
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ORDER signed by Judge Garland E. Burrell, Jr. on 12/14/2011 DENYING plaintiff's 7/19/2011 276 Request for Certification of Interlocutory Appeal and 10/25/2011 292 Motion for Partial Entry of Final Judgment. (Marciel, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DWAYNE EICHLER,
Plaintiff,
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No. 2:04-cv-1108 GEB JFM (PC)
vs.
CDC OFFICER SHERBIN, et al.,
Defendants.
ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to
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42 U.S.C. § 1983. On July 19, 2011, plaintiff filed a requests for certification of this court’s
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March 22, 2011 order for interlocutory appeal. By that order, the court denied plaintiff’s motion
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for reconsideration of an order of the magistrate judge denying in most respects plaintiff’s motion
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to amend his complaint, denying a motion to compel filed by plaintiff, and denying without
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prejudice plaintiff’s motion for leave to file a supplemental brief. On October 25, 2011, plaintiff
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filed a notice of interlocutory appeal and request for entry of final judgment on his claims against
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defendants Sherburn and Lebeck, for whom summary judgment was entered by order filed
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September 28, 2011. The latter appeal was processed to the United States Court of Appeals for
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the Ninth Circuit, and was dismissed for lack of jurisdiction by order filed December 7, 2011.
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Plaintiff’s July 19, 2011 motion is governed by 28 U.S.C. § 1292(b). That section
authorizes a district court to certify for interlocutory appeal an order not otherwise appealable
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where the court is “of the opinion that such order involves a controlling question of law as to
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which there is substantial ground for difference of opinion and . . . an immediate appeal from the
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order may materially advance the ultimate termination of the litigation. . . .” 28 U.S.C. §
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1292(b). Such certification is to be made in the order. Id. The court’s March 22, 2011 order is
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not otherwise appealable and does not contain the required certification, nor is there any basis in
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the record for certifying that order for interlocutory appeal. Plaintiff’s motion will be denied.
Plaintiff’s October 25, 2011 request is governed by Rule 54(b) of the Federal
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Rules of Civil Procedure. That rule authorizes the court to “direct entry of final judgment as to
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one or more, but fewer than all, claims or parties only if the court expressly determines that there
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is no just reason for delay.” Fed. R. Civ. P. 54(b). “Rule 54(b) certification is proper if it will
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aid ‘expeditious decision’ of the case.... However, Rule 54(b) certification is scrutinized to
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prevent piecemeal appeals in cases which should be reviewed only as single units.” Texaco, Inc.
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v. Ponsoldt, 939 F.2d 794, 797-98 (9th Cir.1991) (internal quotations omitted). Entry of final
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judgment on plaintiff’s claims against defendants Sherburn and Lebeck will not aid expeditious
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resolution of this case. Plaintiff’s request will be denied.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s July 19, 2011 request for certification of interlocutory appeal is
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denied; and
2. Plaintiff’s October 25, 2011 motion for partial entry of final judgment
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pursuant to Fed. R. Civ. P. Rule 54(b) is denied.
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Dated: December 14, 2011
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GARLAND E. BURRELL, JR.
United States District Judge
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