Zuege v. Knoch et al

Filing 47

Order denying plaintiff's motion to certify that an interlocutory appeal may be taken from the 11/9/09 order. Leave to proceed ifp on appeal denied. Appeal not certified to be taken in good faith. Signed by Chief Judge Barbara B. Crabb on 11/23/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN ---------------------------------------------M IC H AE L J. ZUEGE, JR., P la i n t i f f , v. D AN IEL KNOCH, ROBERT LAZORIK an d WISCONSIN PATIENT COMPENSATION FUND, D efendan ts. --------------------------------------------Plaintiff Michael J. Zuege, Jr. is proceeding on Eighth Amendment and state law negligence and medical malpractice claims against defendants. On November 9, 2009, I issued an order dismissing then-defendant University of Wisconsin Hospital and Clinics from the case because plaintiff failed to state a claim upon which relief could be granted against it. Now plaintiff has filed a notice of appeal seeking relief from that order. I un derstand plaintiff to be asking me to certify that he can take an interlocutory appeal under 28 U.S.C. §1292(b) from the November 9, 2009 order. 28 U.S.C. § 1292(b) states in relevant part, When a district judge, in making in a civil action an order not otherwise app ealable under this section, shall be of the opinion that such order involves OR DER 09-cv-451-vis1

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I am assuming jurisdiction over this case for the purpose of issuing this order.

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 m aterially advance the ultimate termination of the litigation, he shall so state in writing in such order. There is not a substantial ground for a difference of opinion on the question of whether plaintiff may proceed against University of Wisconsin Hospital and Clinics, because the plain language of Wis. Stat. § 233.17 states that liability cannot be imputed to the hospital f o r the actions of faculty or academic staff acting within the scope of their employment, w hich are the precise allegations against defendants Knoch and Lazorik in this case. See also S u ch om el v. University of Wisconsin Hospital and Clinics, 2005 WI App 234, ¶¶ 26-28, 28 8 Wis. 2d 188, 204, 708 N.W.2d 13, 20-21 (Ct. App. 2005). Moreover, an immediate a p p e a l will not materially advance the ultimate termination of this litigation. Rather, it w ou ld serve only to delay the litigation. Therefore, I will deny plaintiff's request for this cou rt to certify that he can take an interlocutory appeal from the November 9, 2009 order in this case. N everth eless, plaintiff's filing of a notice of appeal triggers a financial obligation for p lain tiff; there is a $455 fee for filing his notice of appeal. I will construe his notice of ap peal as including a request to proceed in forma pauperis on appeal. However, I will deny that request because I certify that his frivolous appeal from a non-final order is not taken in good faith. Therefore he owes the $455 filing fee for this appeal immediately.

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OR DER IT IS ORDERED that 1. Plaintiff's motion for the court to certify that an interlocutory appeal may be taken fro m the November 9, 2009 order in this case, dkt. #39 is DENIED. 2. Plaintiff's request for leave to proceed in forma pauperis on appeal, dkt. #39, is D EN IED . I certify that plaintiff's appeal is not taken in good faith. The clerk of court is directed to insure that plaintiff's obligation to pay the $455 fee for filing his appeal is reflected in the court's financial record. Entered this 23r d day of November, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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