Lovett v. Ruda et al

Filing 74

ORDER denying 65 Notice of Interlocutory Appeal and Collateral-Order Doctrine, which the Court construes as a request for entry of finaljudgment or a motion to certify an interlocutory appeal, and denying 70 Motion for Leave to Proceed in Forma Pauperis, by Judge Philip A. Brimmer on 11/21/18. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-02010-PAB-KLM
BRENT EDWARD LOVETT,
Plaintiff,
v.
TAMMY RUDA, in her individual and official capacity as Food Service Supervisor,
CO HARRISON, in her official capacity as Corrections Officer,
CO THOMAS, in her official capacity as Corrections Officer,
CO VERSAW, in her official capacity as Corrections Officer,
CO MCCLENNON, in her official capacity as Corrections Officer, and
CO PENA, in her official capacity as Corrections Officer,
Defendants.

ORDER

This matter comes before the Court on plaintiff’s Notice of Interlocutory Appeal
and Collateral-Order Doctrine [Docket No. 65]. Plaintiff requests permission to appeal
an interlocutory order, entry of final judgment, and a stay pending appeal. Docket No.
65. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
Plaintiff is a federal prisoner at the Florence Prison Camp (“FPC”) in Florence,
Colorado. Docket No. 13 at 2. He brings this lawsuit against Food Service Supervisor
Tammy Ruda and several correctional officers, alleging that defendants violated his
constitutional and statutory rights by failing to provide him with an adequate gluten-free
diet at FPC. See id. at 4-7, 17-20. On September 28, 2018, the Court accepted in part
and rejected in part the magistrate judge’s report and recommendation on defendants’
motion to dismiss, thereby dismissing several of plaintiff’s claims. See Docket No. 57.

However, the Court granted plaintiff leave to amend his Eighth Amendment claims
against defendants Harrison, Thomas, McClendon,1 Versaw, and Pena, as well as his
Eighth Amendment claim against defendant Ruda in her individual capacity to the
extent that such claim was based on conduct occurring on or after August 21, 2015.
See id. at 26. In addition, the following claims remained in the lawsuit: (1) plaintiff’s
Eighth Amendment claims against defendants Harrison, Thomas, McClendon, Versaw,
and Pena in their official capacities to the extent that such claims are based on
allegations that defendants failed to feed plaintiff for two or more days in a row on more
than one occasion; and (2) plaintiff’s First and Eighth Amendment claims against
defendant Ruda in her official capacity to the extent that those claims are based on
conduct occurring on or after August 21, 2015. Id. at 26 n.15. On October 12, 2018,
plaintiff filed a notice of interlocutory appeal requesting that the Court permit plaintiff to
appeal the partial dismissal of his claims, enter final judgment on the dismissed claims,
and stay this matter pending appeal. See Docket No. 65. The United States Court of
Appeals for the Tenth Circuit docketed plaintiff’s interlocutory appeal on October 15,
2018. Docket No. 68. On November 2, 2018, defendants filed a response opposing
plaintiff’s notice. Docket No. 71.
The right to pursue an interlocutory appeal may be granted pursuant to either

1

As the magistrate judge noted in the report and recommendation, defendant
McClendon’s name was incorrectly spelled in the second amended complaint. See
Docket No. 50 at 2 n.4. The Court will use the correct spelling for purposes of this
order.
2

Fed. R. Civ. P. 54(b) or 28 U.S.C. § 1292(b). 2 Rule 54(b) provides in relevant part:
When an action presents more than one claim for relief – whether as a
claim, counterclaim, crossclaim, or third-party claim – or when multiple
parties are involved, the court may direct entry of a final judgment as to
one or more, but fewer than all, claims or parties only if the Court
expressly determines that there is no just reason for delay.
Fed. R. Civ. P. 54(b). Entry of final judgment is appropriate under this rule only if the
Court concludes (1) “that its judgment is final,” and (2) that “no just reason for delay of
entry of its judgment exists.” Stockman’s Water Co., LLC v. Vaca Partners, L.P., 425
F.3d 1263, 1265 (10th Cir. 2005). In making these determinations, the Court considers
“whether the claims under review are separable from the others remaining to be
adjudicated and whether the nature of the claims already determined are such that no
appellate court would have to decide the same issues more than once even if there
were subsequent appeals.” Id. (internal quotation marks and brackets omitted).
Section 1292(b) of Title 28 provides:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order
involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation, he
shall so state in writing in such order.
Pursuant to the terms of this statute, four criteria must be met before a district court
may certify an issue 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

2

Plaintiff does not identify either provision in his motion and admits that he does
not know the proper procedure for requesting permission to pursue an interlocutory
appeal. See Docket No. 65 at 1-2. However, the Court construes plaintiff’s pro se
filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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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)).
The Court finds that the relevant factors do not support entry of final judgment
under Fed. R. Civ. P. 54(b). The issue under Rule 54(b) is whether plaintiff’s dismissed
claims are “distinct and separable from the claims left unresolved.” Jordan v. Pugh,
425 F.3d 820, 826 (10th Cir. 2005) (internal quotation marks omitted). This inquiry
turns on
whether the claim that is contended to be separate so overlaps the claim
or claims that have been retained for trial that if the latter were to give rise
to a separate appeal at the end of the case the court would have to go
over the same ground that it had covered in the first appeal.
Id. at 827 (quoting Lawyers Title Ins. Corp. v. Dearborn Title Corp., 118 F.3d 1157,
1162 (7th Cir. 1997)). Applying this test here, the claims plaintiff seeks to appeal are
not separable from those left unresolved. All of plaintiff’s claims arise out of the same
underlying conduct – namely, defendants’ failure to provide plaintiff with an adequate,
gluten-free diet. See Oklahoma Turnpike Auth. v. Bruner, 259 F.3d 1236, 1243 (10th
Cir. 2001) (holding that “the facts giving rise to [plaintiff’s] four claims [were] so
overlapping that the certification under Rule 54(b) of an order disposing of only two of
the claims was error”). Many claims also involve common legal issues, including the
question of whether defendants’ actions violated plaintiff’s rights under the First and
Eighth Amendments. Thus, were the Court to enter final judgment at this juncture, the
4

Tenth Circuit would likely be presented with the same issues more than once in the
event of a later appeal. See Jordan, 425 F.3d at 827 (“To determine whether separate
appeals will be redundant, courts consider whether the allegedly separate claims turn
on the same factual questions . . . [or] involve common legal issues . . . .”).
For similar reasons, the Court declines to grant certification under 28 U.S.C.
§ 1292(b). Even if plaintiff could show that the issues sought to be appealed involve a
controlling question of law for which there is a substantial ground for difference of
opinion, several claims remain in this lawsuit, the majority of which would not be
affected by an immediate appeal. Separate appeals would therefore not “advance the
ultimate termination of the litigation.” Carbajal, 51 F. Supp. 3d at 1068. 3
For the foregoing reasons, it is
ORDERED that plaintiff’s Notice of Interlocutory Appeal and Collateral-Order
Doctrine [Docket No. 65], which the Court construes as a request for entry of final
judgment under Fed. R. Civ. P. 54(b) and/or a motion to certify an interlocutory appeal
under 28 U.S.C. § 1292(b), is DENIED. It is further
ORDERED that the Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 [Docket No. 70] is DENIED as moot.
DATED November 21, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
3

Because there is no final judgment from which plaintiff may appeal, his request
for a stay pending appeal is denied.
5