Hill et al v. Granholm et al

Filing 42

ORDER denying 34 Motion for Certification of Interlocutory Appeal. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY HILL, JEMAL TIPTON, DAMION
TODD, BOBBY HINES, KEVIN BOYD, BOSIE
SMITH, JENNIFER PRUITT, MATTHEW
BENTLEY, and KEITH MAXEY,
Plaintiffs,

Case No. 10-14568

v.
Hon. John Corbett O’Meara
RICK SNYDER, in his official capacity as
Governor of the State of Michigan, RICHARD
MCKEON, in his official capacity as Interim
Director, Michigan Department of Corrections,
BARBARA SAMPSON, in her official capacity
as Chair, Michigan Parole Board, jointly and severally,
Defendants.
______________________________________________/

ORDER DENYING DEFENDANTS’ MOTION
FOR CERTIFICATION OF INTERLOCUTORY APPEAL
This case involves Plaintiffs’ challenge to the constitutionality of Michigan’s sentencing
scheme, which permits sentences of life without parole for juveniles. On July 15, 2011, the court
granted in part and denied in part Defendants’ motion to dismiss. The surviving claim is
Plaintiff Keith Maxey’s claim under the Eighth Amendment.
Before the court is Defendants’ motion for certification of interlocutory appeal and
request for stay pending appeal. Plaintiff opposes Defendants’ motion. To obtain permission to
appeal pursuant to 28 U.S.C. § 1292(b), Defendants must show that: “(1) the question involved
is one of law; (2) the question is controlling; (3) there is substantial ground for difference of
opinion respecting the correctness of the district court’s decision; and (4) an immediate appeal

would materially advance the ultimate termination of the litigation.” Vitols v. Citizens Banking
Co., 984 F.2d 168, 170 (6th Cir. 1993). “Review under § 1292(b) should be sparingly granted
and then only in exceptional cases.” Id.
The court is not persuaded that this is in an exceptional case warranting immediate
appellate review under § 1292(b). In denying Defendants’ Rule 12(b)(6) motion, the court
determined that Keith Maxey stated a claim under the Eighth Amendment. As the court stated in
its opinion, the “full Eighth Amendment analysis required by Graham involves the presentation
of evidence that is not yet before the court on this Rule 12(b)(6) motion.” See Graham v.
Florida, 130 S.Ct. 2011 (2010). An immediate appeal at this stage would not advance this
litigation, but delay the presentation of evidence needed to conduct the analysis required by
Graham.
Therefore, IT IS HEREBY ORDERED that Defendants’ motion for certification of
interlocutory appeal and request for stay pending appeal is DENIED.

s/John Corbett O’Meara
United States District Judge
Date: January 12, 2012

I hereby certify that a copy of the foregoing document was served upon counsel of record
on this date, January 12, 2012, using the ECF system.

s/William Barkholz
Case Manager

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