GUILLE v. JOHNSON et al

Filing 15

OPINION filed. Signed by Judge Peter G. Sheridan on 6/17/2019. (km)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ADRIAN GUILLE,
Plaintiff,

:

Civ. No. 18-1472 (PGS-ZNQ)

v.

STEVEN JOHNSON, et al.,

OPINION

Defendants.

PETER G. SHERIDAN, U.S.D.J.
1.

Adrian Guille has filed a motion and request for leave to appeal this Court’s order

dismissing certain claims and defendants from his civil complaint without prejudice. (ECF No.
13). The Court construes this as a request for certification under 28 U.S.C.

§

1292(b). For the

following reasons, the motion is denied.
2.

Plaintiff is currently incarcerated in New Jersey State Prison (“NJSP”) Trenton,

New Jersey. He submitted a complaint raising various claims against prison officials, including
excessive force, denial of medical care, retaliation, and conditions of confinement.
3.

On May 13, 2019, the Court reviewed the complaint pursuant to 28 U.S.C.

§

1915(e)(2) and permitted the complaint to proceed in part. (ECF No. 10). The Clerk mailed
Plaintiff US Marshal Form 285 to complete and return so service could be completed. (ECF No.
ii).
4.

Plaintiff filed this motion and request for leave to appeal on June 11, 2019. (ECF

No. 13). He argues the Court erred by (I) failing to read Plaintiff’s claims against the supervisors
liberally; (2) determining that Plaintiff was raising supervisory claims under the doctrine of

/

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respondeat

superior; (3) dismissing claims against Steven Johnson for failing for provide

recreational opportunities; (4) determining that Plaintiff had not alleged personal involvement of
certain defendants; (5) dismissing claims against Mrs. Echevarria based on lack of personal
involvement; (6) holding Plaintiff to a higher pleading standard; (7) failing to read Plaintiffs
complaint liberally (essentially a repeat of Ground 1); (8) reviewing only the claims listed under
the “Claims for Relief’ heading; (9) denying class certification; (10) failing to appoint plaintiff
as interim counsel; (11) failing to to find that “[t]he claims of the representative parties is [sic]
typical of the claims of the other class members.

.

.

and in fact the vast majority of plaintiffs

claims are typical of the claims of the entire class” (ECF No. 13-1 at 10); (12) failing to consider
that certification is “particularly appropriate in the prison litigation context where only injunctive
and declaratory relief are sought” (Id.); and (13) failing to note that other lawsuits have been
“filed, litigated and won, or settled” regarding prison conditions. (ECF No. 13-1 at 11).
5.

He also objects to the Court’s failure to rule on his request to expedite his requests

for a preliminary injunction and temporary restraining order. (Id. at 12).
6.

“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.” 28 U.S.C.
7.

§

1292(b).

“The statute thus enunciates three criteria which must be met before an

interlocutory appeal may be granted: the order from which appeal is taken must (1) ‘involve
a
controlling question of law,’ (2) be of a nature that an immediate appeal would ‘materially
advance the ultimate termination of the litigation,’ and (3) ‘offer substantial ground for

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difference of opinion as to its correctness.” Urbach v. Sayles, 779 F. Supp. 351, 353 (D.N.J.
1991) (quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.), cert. denied, 419 U.s.
885 (1974)). “The Third Circuit has recognized that these requirements should be stringently
observed.” Id. (citing Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433 (3d Cir.1958)).
8.

“Whether to allow an interlocutory appeal of a non-final order is left to the

discretion of the district court.” APCC Servs., inc. v. Sprint Commc’ns Co., L.P., 297 F. Supp. 2d
90, 95 (D.D.C. 2003) (citing Swint v. Chambers County Comm ‘n, 514 U.S. 35, 47 (1995)).
9.

Plaintiff argues the Court has overlooked facts and legal issues raised in his

complaint. These are arguments that can be addressed in Plaintiff’s motion for reconsideration
which is pending before the Court. (ECF No. 12). See Local Civ. R. 7.1(i) (allowing a party to
seek a motion for reargument or reconsideration of “matter[s] or controlling decisions which the
party believes the Judge or Magistrate Judge has overlooked”).
10.

The Court finds that Plaintiff does not meet the requirements of § 1292(b) for

certification because an immediate appeal would not materially advance the ultimate termination
of the litigation. The litigation has barely begun; Plaintiff has not even served defendants. An
immediate appeal is unnecessary because the Court can address Plaintiff’s arguments in his
motion for reconsideration. Alternately, Plaintiff could file an amended complaint as the Court’s
dismissals were without prejudice. In either case, there are alternatives to an appeal on the
arguments raised in Plaintiff’s motion.
11.

The Court declines to exercise its discretion to certify an appeal. An appropriate

order follows.

PETER G. SHERIDAN
United States District Judge

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