Stewart v. Kirkegard et al

Filing 78

ORDER denying 62 Motion for Certificate of Appealability, as construed as a request to certify the issues for interlocutory appeal. Signed by Judge Dana L. Christensen on 9/21/2017. Mailed to Stewart (TAG)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

SEP 2 1 2017
Cieri<, U.S. District Court
District Of Montana
Missoula

CV 15-00084-H-DLC-JTJ

LAURENCE STEWART,
Plaintiff,

ORDER

vs.
WARDEN LEROY KIRKEGARD, et al.,
Defendants.

Pending before the Court is Plaintiff Laurence Stewart's Motion for
Certificate of Appealability. (Doc. 62). The Court construes Mr. Stewart's motion
as a request to certify issues for interlocutory appeal pursuant to 28 U.S.C. §
1292(b). 1 This statute provides a mechanism by which litigants can bring an
immediate appeal of a non-final order upon the consent of both the district court
and the court of appeals. The certification requirements are: (1) that there be a
controlling question of law, (2) that there be substantial grounds for difference of
opinion, and (3) that an immediate appeal may materially advance the ultimate

'Mr. Stewart presents his motion as a request for a certificate of appealability under Rule
54(b) of the Federal Rules of Civil Procedure. Rule 54 allows a court to issue a judgment on one
or more, but fewer than all claims or parties but it does not discuss the process of interlocutory
appeal. A "certificate of appealability" is not applicable in this situation. It is a mechanism by
which a petitioner may seek permission from the district court to appeal the denial of a habeas
petition. See 28 U.S.C. § 2253(c).

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termination of the litigation. "[T]he legislative history of 1292(b) indicates that
this section was to be used only in exceptional situations in which allowing an
interlocutory appeal would avoid protracted and expensive litigation. In re

Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1981).
Mr. Stewart has not shown that exceptional circumstances exist to certify an
interlocutory appeal. He failed to show a controlling question of law, a substantial
grounds for a difference of opinion, or that an immediate appeal would advance
the ultimate termination of the litigation. Instead, he merely disagrees with the
Court's decision. This is not sufficient reason to upset the normal course of a
proceeding.
Accordingly, IT IS HEREBY ORDERED THAT Mr. Stewart's motion for
certificate of appealability (Doc. 62) as construed as a request to certify the issues
for interlocutory appeal is DENIED.
DATED this

21 staay of September,

Dana L. Christensen, Chief Judge
United States District Court

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