McCain v. Jenkins et al

Filing 133

REPORT AND RECOMMENDATION THAT PRO SE PLAINTIFFS MOTION FOR AN EXTENSION OF TIME TO FILE A NOTICE OF APPEAL (DOC. 132 ), WHETHER CONSTRUED AS A MOTION OR AS A REQUEST FOR LEAVE TO FILE AN INTERLOCUTORY APPEAL, BE DENIED. Objections to R&R due by 2/7/2019. Signed by Magistrate Judge Michael J. Newman on 1/24/2019. (srb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL D. MCCAIN, SR.,
Plaintiff,

Case No. 2:15-cv-1262

vs.
CHAROLETTE JENKINS, et al.,

District Judge Michael H. Watson
Magistrate Judge Michael J. Newman

Defendants.
______________________________________________________________________
REPORT AND RECOMMENDATION1 THAT PRO SE PLAINTIFF’S MOTION FOR AN
EXTENSION OF TIME TO FILE A NOTICE OF APPEAL (DOC. 132), WHETHER
CONSTRUED AS A MOTION OR AS A REQUEST FOR LEAVE TO FILE AN
INTERLOCUTORY APPEAL, BE DENIED
______________________________________________________________________
This prisoner civil case is before the Court on pro se Plaintiff’s
motion for an extension of time to file a notice of appeal (doc. 132)
regarding two Orders filed by the undersigned (docs. 113, 125).

The

first Order Plaintiff seeks to appeal is an October 5, 2018 Order
concerning pretrial issues and the grant of Plaintiff’s request for
discovery sanctions against Defendants.

Doc. 113. The second Order at

issue concerned issues regarding Plaintiff’s receipt of a service copy
of the October 5th Order.

Doc. 125.

In other words, both Orders are

interlocutory, not final decisions.
Generally, “courts of appeals . . . shall have jurisdiction of
appeals from all final decisions of the district courts of the United
States.”

28 U.S.C. § 1291.

Interlocutory orders not dealing with

injunctive relief as set forth in 28 U.S.C. § 1292(a) may be appealed
only if a judge finds that the order involves “a controlling question

Attached hereto is a NOTICE to the parties regarding objections to this
Report and Recommendation.
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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[.]”

28 U.S.C.

§ 1292(b).

The

Orders at issue here do not meet the requirements of 28 U.S.C. § 1292(b)
in that, inter alia, an immediate appeal of these Orders will not
materially advance the ultimate termination of this case.
Because the Orders Plaintiff seeks to appeal are not appealable at
this time, the undersigned RECOMMENDS that his motion for an extension
of time to file a notice of appeal (doc. 132) be DENIED.

Insofar as pro

se Plaintiff’s motion can liberally be construed as a request for leave
to file an interlocutory appeal, the undersigned RECOMMENDS that such
request likewise be DENIED.
Date: January 24, 2019

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file
specific, written objections to the proposed findings and recommendations
within FOURTEEN days after being served with this Report and Recommendation.
This period is not extended by virtue of Fed. R. Civ. P. 6(d) if served on
you by electronic means, such as via the Court’s CM/ECF filing system.

If,

however, this Report and Recommendation was served upon you by mail, this
deadline is extended to SEVENTEEN DAYS per Fed. R. Civ. P. 6(d).

Parties

may seek an extension of the deadline to file objections by filing a motion
for extension, which the Court may grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and
Recommendation objected to and shall be accompanied by a memorandum of law
in support.

If the Report and Recommendation is based, in whole or in part,

upon matters occurring of record at an oral hearing, the objecting party
shall promptly arrange for the transcription of the record, or such portions
of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs.
A party may respond to another party’s objections within FOURTEEN days
after being served with a copy thereof.

As noted above, this period is not

extended by virtue of Fed. R. Civ. P. 6(d) if served on you by electronic
means, such as via the Court’s CM/ECF filing system.

If, however, this

Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS per Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may
forfeit rights on appeal.

See Thomas v. Arn, 474 U.S. 140, 153-55 (1985);

United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

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