Wilkins v. Gonzalez, et al.

Filing 38

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/18/17 recommending that plaintiff's motion for certification of an interlocutory appeal 35 be denied. MOTION 35 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEENAN WILKINS, 12 13 14 15 No. 2: 16-cv-0347 KJM KJN P Plaintiff, v. FINDINGS AND RECOMMENDATIONS PAUL GONZALES, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for certification of an 19 interlocutory appeal. (ECF No. 35.) For the reasons stated herein, the undersigned recommends 20 that this motion be denied. 21 On March 31, 2017, the Honorable Kimberly J. Mueller adopted the August 12, 2016 and 22 November 9, 2016 findings and recommendations addressing the claims raised in the second 23 amended complaint and denying plaintiff’s motion for leave to file a third amended complaint. 24 (ECF No. 33.) Judge Mueller ordered that all claims in the second amended complaint, except for 25 the retaliation claims against defendants Swarthout, Chaiken, Jones, Vasquez, Hurtz, Couch, 26 Gonzales and Pulley, and the Eighth Amendment claim against defendant Jones, were dismissed. 27 In the pending motion, plaintiff requests that the court certify Judge Mueller’s March 31, 28 2017 order for interlocutory appeal. Judge Mueller’s order is not subject to interlocutory appeal 1 1 without an order finding that the March 31, 2017 order “involves a controlling question of law as 2 to which there is substantial ground for difference of opinion and that an immediate appeal from 3 the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). 4 The undersigned recommends that plaintiff’s motion for an order certifying the March 31, 5 2017 order for interlocutory appeal be denied. Judge Mueller’s order does not involve a 6 controlling of law as to which there is substantial ground for difference of opinion. Additionally, 7 an immediate appeal from the March 31, 2017 order will not materially advance the ultimate 8 termination of this litigation. 9 10 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for certification of an interlocutory appeal (ECF No. 35) be denied. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, plaintiff may file written objections 14 with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 16 failure to file objections within the specified time may waive the right to appeal the District 17 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 Dated: April 18, 2017 19 20 21 22 23 Wilk347.app 24 25 26 27 28 2

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