Cagliostro v. Collins

Filing 41

ORDER denying Plaintiff's 40 Motion to appeal in Forma Pauperis for the Denied Appointment of Counsel (motion for interlocutory appeal). Signed by Judge Ricardo S Martinez. (PM) cc: plaintiff via first class mail

1
2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8
9

RITA CAGLIOSTRO,

10

Plaintiff,

11
12
13
14

Case No. C18-425RSM
ORDER DENYING MOTION FOR
INTERLOCUTORY APPEAL

v.
FORREST R. COLLINS,
Defendant.

15

The instant matter comes before the Court on Plaintiff Rita Cagliostro’s Motion “to

16

appeal in Forma Pauperis for the Denied Appointment of Counsel,” Dkt. #40, which the Court

17

interprets as a motion for interlocutory appeal. The Court has determined that it can rule on

18

this Motion without responsive briefing.

19
20

Pro se Plaintiff Rita Cagliostro has already been granted leave to proceed in forma

21

pauperis in this matter. Dkt. #2. Ms. Cagliostro states in her Motion that she is “requesting

22

permission to appeal in Forma Pauperis the DENIED APPPOINTMENT OF COUNSEL, as its

23

own separate appeal.” Dkt. #40 at 2 (emphasis in the original). She attaches a recent Order of

24
25

the Ninth Circuit denying her appeal of this case “because the order challenged in the appeal is

26

not final or appealable…” Id. at 4. All of this leads the Court to believe that Ms. Cagliostro is

27

seeking an order from this Court permitting interlocutory appeal of the Court’s prior Order

28

denying appointment of counsel, Dkt. #13.

ORDER DENYING MOTION FOR INTERLOCUTORY APPEAL - 1

1

Under 28 U.S.C. § 1292(b), a district court may grant interlocutory appeal if an order

2

“involves a controlling question of law” where there is “substantial ground for difference of

3

opinion” and an immediate appeal will “materially advance the ultimate termination of the

4

litigation.”

5
6

The Court’s prior Order stated that, in civil cases, the appointment of counsel to a pro se

7

litigant “is a privilege and not a right.” Dkt. #13 (citing United States ex. Rel. Gardner v.

8

Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citation omitted)). The Court in that Order stated

9

the applicable standard and found Ms. Cagliostro had failed to set forth exceptional

10
11

circumstances warranting the appointment of counsel in this case.

12

The Court now finds that its prior Order did not involve a controlling question of law as

13

to the merits of Ms. Cagliostro’s case, that there would not be a substantial ground for

14

difference of opinion as to the issue, and that an immediate appeal would not materially

15

advance the ultimate termination of the litigation. Given all of the above, the Court finds that

16
17

an interlocutory appeal is not warranted under 28 U.S.C. § 1292(b).

18

Having reviewed the relevant briefing and the remainder of the record, the Court hereby

19

finds and ORDERS that Plaintiff Cagliostro’s Motion for Interlocutory Appeal, Dkt. #40, is

20

DENIED. The Clerk shall send a copy of this Order to Plaintiff at 212 ALASKAN WAY S.

21

#205 SEATTLE, WA 98104.

22
23
24

DATED this 18th day of July, 2018.

25

A

26

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

27
28

ORDER DENYING MOTION FOR INTERLOCUTORY APPEAL - 2