Maestas (ID 89892) v. Waddington et al

Filing 9

ORDER ENTERED: Petitioner's motion 5 for reconsideration, if any, is denied. This court declines to certify petitioner's interlocutory appeal 6 , if any, and certifies that this appeal is not taken in good faith. Signed by Senior District Judge Sam A. Crow on 05/14/14. (Mailed to pro se party Michael Joseph Maestas, Jr. by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL JOSEPH
MAESTAS, JR.,
Petitioner,
v.

CASE NO.

14-3060-SAC

WARDEN DOUG
WADDINGTON, et al.,
Respondents.
O R D E R
On April 29, 2014, the court screened this pro se Section
2254 petition filed

by an inmate of the Larned Correctional

Mental Health Facility.

The court found petitioner’s Motion to

Proceed in forma pauperis was not supported by the requisite
financial

information

and

that

the

petition

was

defective.

Petitioner was given time to submit his financial information
and

to

cure

the

deficiencies

in

his

petition

by

filing

an

Amended Petition.
A week after the screening order was

entered, a 9-page

document was received in this case that was obviously crafted by
Mr. Parrish-Parrado.

The clerk copied this single document and

docketed it as three different matters: (1) Amended Petition,
(2) Motion for Reconsideration and (3) Notice of Interlocutory
Appeal.

This

document

is

neither

in

compliance

with

nor

responsive to the court’s screening order and in effect merely
1

seeks reconsideration and interlocutory appeal of the court’s
rulings in that order.
This document starts with a title page of “Court-ordered
Amended Petition.”

However,

what follows

is

not

an

Amended

Petition upon court-approved forms, which is what petitioner was
ordered

to

file.

The

court

finds

that

“Amended

Petition”

docketed by the clerk as (Doc. 4) is not in compliance with and
does

not

satisfy

the

court’s

Order

entered

April

29,

2014.

Petitioner remains obligated to comply with the court’s order to
file a complete and proper Amended Complaint upon court-approved
forms within the time previously prescribed by the court or this
action may be dismissed without further notice.
The

portion

of

this

document

docketed

as

“Motion

for

Reconsideration” (Doc. 5) is not a proper, separate motion for
reconsideration.

Nor is the title “Motion for Reconsideration”

next to the case caption at the top of the first page of the
motion and petitioner’s signature is not at the end of this
motion.

A motion is not properly submitted as a portion of a

page within an Amended Petition.

As noted, such an imbedded

motion is an improper and abusive practice characteristic of
filings

by

Mr.

Parrish-Parrado.

This

motion

is

denied

as

improper and because no facts are clearly set forth as the basis
for a motion for reconsideration.
If

petitioner

is

having

difficulty
2

obtaining

financial

information, he may seek an extension of time to comply with the
court’s order on that basis.
describing

his

efforts

whom,

how

the

and

However, he must include facts

including

financial

responses to his requests.

the

date(s)

information

was

on

which,

requested,

from
and

If he claims that he is altogether

unable to provide the requisite financial information, he must
likewise describe his efforts as well as show that he has sought
assistance

in

obtaining

the

information

through

appropriate

administrative channels.
The

portion

of

this

document

docketed

as

“Notice

of

Interlocutory Appeal” (Doc. 6) is not a proper, separate Notice
of Interlocutory Appeal with the case caption and this title at
the top of the first page.
this Notice.

Petitioner’s signature is not on

The court is tempted to strike this filing for

these reasons.

However, the clerk has already forwarded appeal

information to the Tenth Circuit Court of Appeals.

Instead, the

court certifies that this interlocutory appeal is not taken in
good faith.
Under 28 U.S.C. § 1291, the Tenth Circuit Court of Appeals
“only possesses appellate jurisdiction over ‘final decisions’ of
district courts.”
964,

969

(10th

See Roska ex rel. Roska v. Sneddon, 437 F.3d
Cir.

2006).

This

requirement

“precludes

consideration of decisions . . . that are but steps towards
final

judgment

in

which

they

will
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merge.”

North

American

Specialty Ins. Co. v. Correctional Medical Services, Inc., 527
F.3d 1033, 1038 (10th Cir. 2008)(citing Roska, 437 F.3d at 969
(internal quotation marks and brackets omitted).
not entered a final decision in this case.

This court has

28 U.S.C. § 1292

provides for appeals from interlocutory decisions by a federal
district court only in very limited circumstances.

Subsection

(b) of § 1292 pertinently provides:
(b) 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. The Court of
Appeals which would have jurisdiction of an appeal of
such action may thereupon, in its discretion, permit
an appeal to be taken from such order, if application
is made to it within ten days after the entry of the
order: Provided, however, That application for an
appeal hereunder shall not stay proceedings in the
district court unless the district judge or the Court
of Appeals or a judge thereof shall so order.
Id.

Having considered this matter and the relevant authorities,

the

court

declines

interlocutory appeal.

to

order

certification

of

this

case

for

Mr. Maestas does not seek to appeal one

of the few actions for which interlocutory appeals are expressly
allowed under § 1292, such as the denial or issuance of an
injunction.

Thus, in order for this interlocutory appeal to

proceed as to the “otherwise not appealable orders,” this court
must

issue

the

written

certification

4

required

by

§

1292.

Certification

of

interlocutory

appeals

under

§

1292(b)

is

“limited to extraordinary cases in which extended and expensive
proceedings
decision

probably

of

action.”

can

controlling

be

avoided

questions

by

immediate

encountered

and

early

final

in

the

State of Utah by and through Utah State Dept. of

Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir.), cert.
denied,

513

U.S.

872

(1994)(citation

omitted).

A

primary

purpose of § 1292(b) is to provide an opportunity to review an
order when an immediate appeal would “materially advance the
ultimate termination of the litigation.”

Id.

This court does not believe that an appeal of its screening
order entered herein on April 29, 2014, requiring satisfaction
of

the

filing

fee

and

an

Amended

Petition

would

advance the ultimate termination of this litigation.
the

screening

order

being

appealed

involve

a

materially
Nor does

“controlling

question of law as to which there is substantial ground for
difference of opinion.”

The court concludes that petitioner’s

interlocutory appeal is not taken in good faith and shall not be
certified.
This matter is not automatically stayed by the petitioner’s
notice of interlocutory appeal, even if proper.

It follows that

the time set by this court for Mr. Maestas to comply with its
prior orders is not stayed.
Finally, the court finds that Mr. Parrish-Parrado has again
5

improperly affixed his signature to pleadings in this case when
he is not the petitioner and has no authority to sign or to
transmit pleadings to the court in this case.

If Mr. Parrish-

Parrado signs or transmits any additional pleading in this case,
the court will consider striking any such pleading.
If

Mr.

Maestas

is

having

difficulty

managing

his

legal

filings, he must make that fact known to prison administrators
and the court.

Any affidavit claiming that his circumstances

have impeded his ability to prosecute this case must be in his
writing and signed and submitted by him.
make

Mr.

Maestas

aware

that

this

The court has tried to

petition

appears

to

be

premature and that the time it is pending will not toll the oneyear statute of limitations.

He should not allow Mr. Parrish-

Parrado to file improper motions and appeals that can only delay
resolution of the threshold issues.
IT

IS

THEREFORE

BY

THE

COURT

ORDERED

that

petitioner’s

Motion for Reconsideration (Doc. 5), if any, is denied.
IT IS FURTHER ORDERED that this court declines to certify
petitioner’s

interlocutory

appeal

(Doc.

6),

if

any,

and

certifies that this appeal is not taken in good faith.
The clerk is directed to transmit a copy of this Order to
Mr. Maestas and to the Tenth Circuit Court of Appeals.
IT IS SO ORDERED.
Dated this 14th day of May, 2014, at Topeka, Kansas.
6

s/Sam A. Crow
U. S. Senior District Judge

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