Hamilton v. Sally's Beauty Supplies et al
Filing
18
MEMORANDUM AND OPINION, and ORDER DENYING 13 Notice of Appeal filed by Jacques Trent Hamilton. ORDERED that Plaintiffs constructive Motion for Leave to File an Interlocutory Appeal is hereby DENIED. Signed by Judge Leonard Davis on 2/28/2013. (gsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JACQUES TRENT HAMILTON, #1713684
§
VS.
§
SALLY’S BEAUTY SUPPLIES, ET AL
§
CIVIL ACTION NO. 6:13cv51
MEMORANDUM OPINION AND ORDER
ON PLAINTIFF’S MOTION FOR INTERLOCUTORY APPEAL
On January 10, 2013, Petitioner, proceeding pro se and in forma pauperis, filed the instant
civil rights lawsuit pursuant to 42 U.S.C. § 1983. The case was referred to Magistrate Judge Judith
K. Guthrie pursuant to 28 U.S.C. § 636(b).
On January 18, 2013, the Magistrate Judge issued a Report and Recommendation that the
complaint be dismissed as frivolous for failure to state a claim upon which relief may be granted
(docket entry #8). On January 31, 2013, Plaintiff filed a motion for an extension of time in which
to file objections (docket entry #12), which was granted. However, on February 4, 2013, he also
filed a pleading entitled “Notice of Appeal.” See docket entry #13.
Plaintiff purports to seek leave to appeal a “final judgment” that he claims was entered in this
case on January 31, 2013. See docket entry #13 at 1. However, there was no such entry of judgment
on that date, or any other date in this case so far. Plaintiff also addressed the pleading to the District
Court and included a prayer that this Court hear his petition and grant a “certificate of appealability”
upon review of the petition. See id. There is no “certificate of appealability” associated with the
appeal of a civil rights action in the sense that there is in the case of a prisoner habeas corpus
petition. However, the Court takes Plaintiff’s request as a motion to the District Court for leave to
1
appeal to the United States Court of Appeals for the Fifth Circuit. In other words, the Court
construes Plaintiff’s pleading as a Motion to the District Court for Leave to File an Interlocutory
Appeal.
Title 28 U.S.C. § 1292(b) provides for interlocutory appeals of trial court decisions when
such decisions (1) involve a controlling question of law (2) as to which there is 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 Fifth Circuit has previously reasoned
that § 1292(b) appeals are appropriate under only “exceptional” circumstances. Clark-Dietz and
Associates-Engineers v. Basica Constr. Co., 702 F.2d 67, 69 (5th Cir.1983). However, in other
cases, the Fifth Circuit has employed a more flexible approach to Section 1292(b) appeals. See
Hadjipateras v. Pacifica, S.A., 290 F.2d 697, 702-03 (5th Cir.1961) (finding that §1292 gave the
appellate machinery “a considerable amount of flexibility” so that “disadvantages of piecemeal and
final judgment appeals might both be avoided”). Regardless of which approach is adopted, the
decision to permit interlocutory appeal is firmly within the district court’s discretion. Cheney v. U.S.
Dist. Court for Dist. of Columbia, 542 U.S. 367, 405 n.9, 124 S. Ct. 2576, 159 L. Ed. 2d 459 (2004)
(Ginsburg, J., dissenting); In re Gomez, 404 Fed. App. 850, 853 (5th Cir. 2010) (district court must
certify in writing that the 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 in order for a Court of Appeals to exercise its own
discretion to hear an interlocutory appeal) (internal quotations and citations omitted).
In this case, it is clear to the Court that Plaintiff has not properly understood the Magistrate
Judge’s January 18, 2013, Report and Recommendation (docket entry #8), including the final
2
recommendation that states explicitly, “It is therefore recommended that Plaintiff’s complaint be
dismissed as frivolous . . . .” See Report and Recommendation at 6 (emphasis added). There is no
final judgment mentioned or implied as of the issuance of that document. Instead, it includes an
invitation to the Plaintiff to file any objections he may have. Indeed, he sought, and was granted,
an extension of time in which to file such objections. See docket entry #16. The Court notes that
Plaintiff’s time has now elapsed to file his objections. In any event, there is no subject matter
suitable for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and there is, as yet, no final
judgment in this case. In other words, not only has there been no final judgment in this case, and not
only would an interlocutory appeal not “materially advance” this action, but it is obvious that
Plaintiff has filed his constructive motion on a mistaken precept. Therefore, Plaintiff’s Motion for
Leave to File an Interlocutory Appeal is misplaced.
It is therefore
ORDERED that Plaintiff’s constructive Motion for Leave to File an Interlocutory Appeal
(docket entry #13) is hereby DENIED.
So ORDERED and SIGNED this 28th day of February, 2013.
__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?