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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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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,

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vs.

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DANIEL PARAMO, Warden, et al.,

[Doc. No. 54]

Defendants.

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Plaintiff Doyle Wayne Davis is incarcerated at Richard J. Donovan Correctional

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Facility (“RJD”) in San Diego. He is proceeding pro se and has filed a civil Complaint

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pursuant to 42 U.S.C. § 1983. Before this Court is Plaintiff’s ex parte motion for

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permission to file an interlocutory appeal regarding the Court’s denial of his request for a

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preliminary injunction. (Doc. No. 54.) For the reasons that follow, the motion is

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DENIED.

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BACKGROUND

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On July 18, 2016, this Court issued an order denying Plaintiff’s motion for a

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preliminary injunction. (Doc. No. 11.) Plaintiff moved for reconsideration, and the

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Court denied Plaintiff’s motion for reconsideration. (Doc. No. 40.) On both occasions,
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3:16-cv-0689-BEN-JMA

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the Court found that Plaintiff had failed to show that he was likely to suffer irreparable

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harm because his assertions of future incidents of retaliation and health complications

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were conjectural. See Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 675

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(9th Cir. 1988) (“Speculative injury does not constitute irreparable injury sufficient to

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warrant granting a preliminary injunction.”). In the order denying the motion for

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reconsideration, the Court also held that it lacked authority to issue an injunction for most

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of the relief sought because the requested relief related to events that occurred after

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Plaintiff filed his Complaint. See Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr.,

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810 F.3d 631, 636 (9th Cir. 2015) (“[T]here must be a relationship between the injury

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claimed in the motion for injunctive relief and the conduct asserted in the underlying

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complaint.”).

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Plaintiff now moves for permission to file an interlocutory appeal of the Court’s

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denials of injunctive relief. He contends that the Court should construe his pleadings

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liberally to grant him the desired relief because his medical conditions are worsening.

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DISCUSSION

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28 U.S.C. § 1292(a)(1) allows courts of appeal to review interlocutory orders

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“refusing . . . injunctions.” Therefore, the Court’s orders denying preliminary injunctive

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relief are immediately appealable orders. Plaintiff does not need the Court’s permission

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to appeal the denials. See Armstrong v. Wilson, 124 F.3d 1019, 1021 (9th Cir. 1997)

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(“[I]nterlocutory appeals under § 1292(a) are ‘by right,’ while those under § 1292(b) are

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‘by permission.’”). Plaintiff’s motion for permission to file an interlocutory appeal is

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denied.

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However, Plaintiff must file a notice of appeal in order to proceed. The Court will

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direct that Plaintiff’s request for permission to file an interlocutory appeal be construed as

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a notice of appeal of the orders denying his requests for preliminary injunctive relief.

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Therefore, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for permission to file an interlocutory appeal (Doc. No. 54) is

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denied; and
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3:16-cv-0689-BEN-JMA

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2. Plaintiff’s motion for permission to file an interlocutory appeal is construed as a

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notice of appeal of the previous orders denying preliminary injunctive relief (Doc. Nos.

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11, 40).

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IT IS SO ORDERED.

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Dated: March 23, 2017

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3:16-cv-0689-BEN-JMA