Davis v. Paramo et al

Filing 69

ORDER denying Plaintiff's 54 Motion for Permission to File and Interlocutory Appeal. Signed by Judge Roger T. Benitez on 3/23/2017. (All non-registered users served via U.S. Mail Service) (fth)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DOYLE WAYNE DAVIS, CDCR #34318, Case No.: 3:16-cv-0689-BEN-JMA ORDER DENYING PLAINTIFF’S MOTION FOR PERMISSION TO FILE AN INTERLOCUTORY APPEAL Plaintiff, 13 vs. 14 15 16 DANIEL PARAMO, Warden, et al., [Doc. No. 54] Defendants. 17 18 19 Plaintiff Doyle Wayne Davis is incarcerated at Richard J. Donovan Correctional 20 Facility (“RJD”) in San Diego. He is proceeding pro se and has filed a civil Complaint 21 pursuant to 42 U.S.C. § 1983. Before this Court is Plaintiff’s ex parte motion for 22 permission to file an interlocutory appeal regarding the Court’s denial of his request for a 23 preliminary injunction. (Doc. No. 54.) For the reasons that follow, the motion is 24 DENIED. 25 BACKGROUND 26 On July 18, 2016, this Court issued an order denying Plaintiff’s motion for a 27 preliminary injunction. (Doc. No. 11.) Plaintiff moved for reconsideration, and the 28 Court denied Plaintiff’s motion for reconsideration. (Doc. No. 40.) On both occasions, 1 3:16-cv-0689-BEN-JMA 1 the Court found that Plaintiff had failed to show that he was likely to suffer irreparable 2 harm because his assertions of future incidents of retaliation and health complications 3 were conjectural. See Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 675 4 (9th Cir. 1988) (“Speculative injury does not constitute irreparable injury sufficient to 5 warrant granting a preliminary injunction.”). In the order denying the motion for 6 reconsideration, the Court also held that it lacked authority to issue an injunction for most 7 of the relief sought because the requested relief related to events that occurred after 8 Plaintiff filed his Complaint. See Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 9 810 F.3d 631, 636 (9th Cir. 2015) (“[T]here must be a relationship between the injury 10 claimed in the motion for injunctive relief and the conduct asserted in the underlying 11 complaint.”). 12 Plaintiff now moves for permission to file an interlocutory appeal of the Court’s 13 denials of injunctive relief. He contends that the Court should construe his pleadings 14 liberally to grant him the desired relief because his medical conditions are worsening. 15 DISCUSSION 16 28 U.S.C. § 1292(a)(1) allows courts of appeal to review interlocutory orders 17 “refusing . . . injunctions.” Therefore, the Court’s orders denying preliminary injunctive 18 relief are immediately appealable orders. Plaintiff does not need the Court’s permission 19 to appeal the denials. See Armstrong v. Wilson, 124 F.3d 1019, 1021 (9th Cir. 1997) 20 (“[I]nterlocutory appeals under § 1292(a) are ‘by right,’ while those under § 1292(b) are 21 ‘by permission.’”). Plaintiff’s motion for permission to file an interlocutory appeal is 22 denied. 23 However, Plaintiff must file a notice of appeal in order to proceed. The Court will 24 direct that Plaintiff’s request for permission to file an interlocutory appeal be construed as 25 a notice of appeal of the orders denying his requests for preliminary injunctive relief. 26 Therefore, IT IS HEREBY ORDERED that: 27 1. Plaintiff’s motion for permission to file an interlocutory appeal (Doc. No. 54) is 28 denied; and 2 3:16-cv-0689-BEN-JMA 1 2. Plaintiff’s motion for permission to file an interlocutory appeal is construed as a 2 notice of appeal of the previous orders denying preliminary injunctive relief (Doc. Nos. 3 11, 40). 4 IT IS SO ORDERED. 5 6 Dated: March 23, 2017 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:16-cv-0689-BEN-JMA

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