Cole v. City of Aurora, Colorado et al

Filing 86

Minute Order. Plaintiff's Second Motion for Extension of Time to File Plaintiff's Notice of Appeal 85 is Denied. Entered by Judge Philip A. Brimmer on 02/08/17. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00588-PAB-MJW
DEREK W. COLE,
Plaintiff,
v.
SGT. TIM E. GENARO, Aurora Police Department, City of Aurora, Colorado, in his
official capacity,
Defendant.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
Entered by Judge Philip A. Brimmer
This matter is before the Court on Plaintiff’s Second Motion for Extension of
Time to File Plaintiff’s Notice of Appeal [Docket No. 85]. Because plaintiff is proceeding
pro se, the Court construes his filings liberally. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
Plaintiff requests an extension of time “in the length and/or duration as
[statutorily] permitted” to file a notice of appeal pursuant to Fed. R. App. P. 4(a)(5).
Docket No. 85 at 1. The Court denied plaintiff’s previous request for an extension of
time to file a notice of appeal, Docket No. 81, on two grounds: first, plaintiff did not state
what order he intended to appeal; and, second, plaintif f did not move for entry of final
judgment as to some but not all claims under Fed. R. Civ. P. 54(b) or, alternatively, for
leave to file an interlocutory appeal under 28 U.S.C. § 1292(b). Docket No. 82 at 1-2.
Plaintiff seeks to appeal the Court’s December 5, 2016 order, Docket No. 77,
accepting the magistrate judge’s recommendation and dismissing all claims against all
defendants except for plaintiff’s claim against defendant Genaro. Docket No. 85 at 2.
Plaintiff states that he “invokes the ‘right ’ to file an ‘interlocutory appeal’ – as permitted
by 28 U.S.C. Sec. 1292(b).” Docket No. 85 at 3.
Under § 1292(b), four criteria must be met before an order may be certified for
appeal: “(1) the action must be a civil action; (2) the court must conclude that the order
involves a controlling question of law; (3) there must be substantial ground for
difference of opinion as to the resolution of that question; and (4) it must appear that an
immediate appeal from the order may materially advance the ultimate termination of the

litigation.” Carbajal v. Keefer, 51 F. Supp. 3d 1065, 1068 (D. Colo. 2014) (citing In re
Grand Jury Proceedings June 1991, 767 F. Supp. 222, 223 (D. Colo. 1991). Plaintif f
makes no mention of these considerations.
Even if plaintiff could show that the second and third factors are satisfied, the
relief requested by plaintiff would not “materially advance the ultimate termination of the
litigation.” Id. at 1068. Plaintiff’s claim against defendant Genaro would be unaffected
by any interlocutory appeal. Separate appeals would therefore not advance termination
of the litigation.
Accordingly, plaintiff’s motion [Docket No. 85] is denied.
DATED: February 8, 2017.

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