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