Chyatte v. Missoula County et al
Filing
138
ORDER denying 135 Motion for Reconsideration; denying 136 Motion to Certify. Signed by Magistrate Judge Jeremiah C. Lynch on 12/29/2015. (MPB) Modified on 12/29/2015: mailed to Chyatte (TAG, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DOUGLAS JOSEPH CHYATTE,
CV 13-174-M-JCL
Plaintiff,
vs.
ORDER
MISSOULA COUNTY, et al.,
Defendants
Plaintiff Douglas Chyatte, an inmate proceeding in forma pauperis and
without counsel has filed a Motion to Certify for Interlocutory Appeal (Doc. 136)
and a Motion for Reconsideration (Doc. 135). Both motions will be denied.
I. Interlocutory Appeal
Pursuant to 28 U.S.C. § 1292(b), an otherwise non-final order may be
subject to interlocutory appeal if the district court certifies, in writing, the
following: (1) the order involves a “controlling issue of law,” (2) the controlling
issue of law is one to which there is a “substantial ground for difference of
opinion,” and (3) “an immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b). The Court of
Appeals then decides if it will hear the interlocutory appeal. See Coopers &
Lybrand v. Livesay, 437 U.S. 463, 474 (1978) (“[E]ven if the district judge
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certifies the order under § 1292(b), the appellant still ‘has the burden of
persuading the court of appeals that exceptional circumstances justify a departure
from the basic policy of postponing appellate review until after the entry of a final
judgment.’ ”).
An issue is “controlling” if its resolution on appeal “could materially affect
the outcome of litigation in the district court.” In re Cement Antitrust Litig., 673
F.2d 1020, 1026 (9th Cir. 1982). As the Ninth Circuit has noted, “the 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 .” Id.
Chyatte seeks an interlocutory appeal of three non-final orders: (1) the
dismissal of Defendants Munsell and Jensen, (2) the denial of Chyatte’s motions
for the appointment of counsel, and (3) the denial of Chyatte’s motion to amend
his claims.
A. Dismissal of Jensen and Munsell
Chyatte first seeks to appeal the Court’s dismissal of Defendants Jensen and
Munsell in its Order on Defendants’ Motions for Summary Judgment (Doc. 76).
Defendant Jensen was dismissed because he had never been served. There has
never been a representation by the Court or Defendants that Defendant Jensen was
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served. Defendant Jensen was not included in the Missoula County’s Waiver of
Service of Summons form (Doc. 14) and no Answer was filed on behalf of
Defendant Jensen (Docs. 17, 20). Had Chyatte wanted further assistance
regarding the service of Defendant Jensen, he needed to request such from the
Court. See Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991)(“An IFP
plaintiff must request that the marshal serve his complaint before the marshal will
be responsible for such service.”)
Jensen has never been made a party to this action. As such, the Court’s
dismissal of Jensen does not involve a “controlling issue of law,” there is
no“substantial ground for difference of opinion,” and an immediate appeal of this
issue would not advance the ultimate termination of the case.
Similarly, there is no basis upon which to allow an interlocutory appeal of
the dismissal of Defendant Munsell. Defendant Munsell was dismissed because
Chyatte represented in a pleading that he misrepresented another individual as
Defendant Munsell in his Complaint. (Reply to Motion to Amend, Doc. 56 at 5.)
He now argues that Defendant Munsell was still responsible for a number of
transgressions and should not have been dismissed. In effect, Chyatte argues there
was a factual misinterpretation of the issues. He does not, however, argue or
establish that the Court’s Order involved a“controlling issue of law,” that there is a
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“substantial ground for difference of opinion,” or that “an immediate appeal from
the order may materially advance the ultimate termination of the litigation.”
Chyatte did file an objection to this ruling (Doc. 115) but that objection
consisted of one sentence stating, “FNP Munsell was involved in the
discontinuation and withholding of Chyatte’s medications.” (Plaintiff’s Fifth
Objection, Doc. 115 at 1.) There was no clear basis for the objection and it was
filed on December 1, 2015, nearly two and a half months after the Court’s ruling
on the Motions for Summary Judgment and just one month prior to the scheduled
trial date. Chyatte’s request for an interlocutory appeal on these issues will be
denied.
B. Appointment of Counsel
Chyatte next seeks to appeal the denial of his various motions for the
appointment of counsel. The Ninth Circuit lacks jurisdiction over interlocutory
appeals for appointment of counsel in civil cases under 28 U.S.C. § 1915(e)(1).
See, e.g., Wilborn v. Escalderon, 789 F.2d 1328, 1330 (9th Cir.1986) (“Because
the denial of counsel in a civil rights action ... does not resolve an important issue
completely separate from the merits . . . , the order . . . is not immediately
appealable.”); Akmal v. Centerstance, Inc., 503 F. App’x 538, 538 (9th Cir. 2013)
(“[W]e lack jurisdiction because the district court’s denial of [the plaintiff’s]
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request for counsel is not immediately appealable.”) (citing Kuster v. Block, 773
F.2d 1048, 1049 (9th Cir.1985) (“[B]ecause the order of the district court does not
resolve an important issue entirely separate from the merits of appellant’s case, we
must dismiss for lack of jurisdiction.”). Therefore, Chyatte’s request for an
interlocutory appeal on this issue will be denied.
C. Motion to Amend
Chyatte also seeks to appeal the Court’s Order denying his motion to file a
second amended complaint (Doc. 34). Chyatte filed this motion on April 3, 2015.
The motion was denied because it was filed after the March 23, 2015 discovery
deadline and well beyond the November 21, 2014 amended pleadings deadline.
(Doc. 52.)
This Order did not involve a controlling issue of law. There is not a
substantial ground for difference of opinion regarding whether a court can require
parties to abide by scheduling orders and an immediate appeal of this order would
not advance the termination of the litigation, rather it would extend it
exponentially. The Court will not grant an interlocutory appeal on this issue.
II. Motion for Reconsideration
In his Motion for Reconsideration, Chyatte asks the Court to reconsider the
denial of his motion to reschedule the trial. (Doc. 135.) He represents that he now
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has counsel willing to represent him in this matter but counsel requires three
months to prepare for trial. He also argues that in light of his Motion to Certify an
Interlocutory Appeal, the trial date should be stayed. As set forth above, Chyatte’s
motion to certify this matter for interlocutory appeal will be denied. Furthermore,
the fact that counsel may be willing to represent Chyatte at a trial in three months
time does not provide sufficient justification for vacating the trial date. This
matter has been ongoing for more than two years and it deals with incidents which
occurred more than three years ago. Chyatte has had more than sufficient time to
obtain counsel and yet he did not provide the Court received notice of this
potential counsel until less than one week before trial. The Court will not delay
this matter further.
Accordingly, the Court issues the following:
ORDER
1. Chyatte’s Motion for Reconsideration (Doc. 135) is denied.
2. Chyatte’s Motion to Certify Interlocutory Appeal (Doc. 136) is denied.
DATED this 29th day of December, 2015.
Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate
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