Carter v. Shawnee Prison Warden Martin et al

Filing 56

MEMORANDUM AND ORDER Denying 54 MOTION for Extension of Time to File MOTION for Certificate of Appealability filed by William Dale Carter. Signed by Judge J. Phil Gilbert on 2/15/13. (bkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM DALE CARTER,
Plaintiff,
vs.

Case No. 12-cv-205-JPG-PMF

SHAWNEE PRISON WARDEN MARTIN, et
al.,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the Court on Carter’s motions for extension of time to file a late
notice of appeal and for certificate of appealability (Doc. 54). For the following reasons the
Court denies Carter’s motions.
Carter wishes to the appeal Magistrate Judge Philip M. Frazier’s denial of Carter’s
motion to amend complaint. Carter does not indicate whether he wishes to appeal that order to
this Court or to the Court of Appeals for the Seventh Circuit. However, because he seeks a
certificate of appealability, the Court infers that he wishes to take an interlocutory appeal to the
appellate court.
Title 28 U.S.C. § 1292(b) governs interlocutory appeals and provides as follows:
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.
“Interlocutory appeal is appropriate when (1) the appeal presents a question of law; (2) it is
controlling; (3) it is contestable; (4) its resolution will expedite the resolution of the litigation;
and (5) the petition to appeal is filed in the district court within a reasonable amount of time after

entry of the order sought to be appealed.” Boim v. Quranic Literacy Inst. and Holy Land Found.
for Relief and Dev., 291 F.3d 1000, 1007 (7th Cir. 2002). A “question of law” refers “to a
question regarding the meaning of a statutory or constitutional provision, regulation or common
law doctrine.” Id.
Here, Carter’s motion seeks to appeal a discretionary ruling to deny the amendment of his
complaint rather than a question of law. See Orix Credit Alliance v. Taylor Mach. Works, 125
F.3d 468, 480 (7th Cir. 1997) (the decision whether to grant a party leave to amend the pleadings
is a matter left to the discretion of the district court). Accordingly, this matter is not appropriate
for interlocutory appeal to the appellate court.
To the extent Carter seeks to appeal Magistrate Judge Frazier’s decision to this Court, the
Court denies that appeal. A district court reviewing a magistrate judge’s decision on
nondispositive issues should modify or set aside that decision if it is clearly erroneous or
contrary to law. See Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). Accordingly, the Court
will affirm Magistrate Judge Frazier’s decision unless his factual findings are clearly erroneous
or his legal conclusions are contrary to law. Id. After a review of the order in question, the
Court does not find Magistrate Judge Frazier’s decision clearly erroneous or contrary to law.
For the foregoing reasons, the Court DENIES Carter’s motions for leave to file late
notice of appeal and for certificate of appealability (Doc. 54).

IT IS SO ORDERED.
DATED: February 15, 2013
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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