1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VANCE EDWARD JOHNSON,

Plaintiff, No. CIV S-04-0776 LKK EFB P

vs.

D.L. RUNNELS, et al.,

Defendants. FINDINGS AND RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

U.S.C. § 1983. Plaintiff recently sought a partial judgment from the court so that he could

proceed with an interlocutory appeal of some issues in the case. That request was denied on

March 25, 2011. Dckt. No. 198. Plaintiff has nevertheless filed a notice of appeal indicating his

intent to seek appellate review of the district judge’s order granting in part defendants’ motion

for summary judgment on the recommendation of the undersigned. Dckt. No. 199.

I. Procedural Background

In this court’s order and findings and recommendations issued August 30, 2010, the court

found that the original screening order in the case had overlooked a potential equal protection

claim in the complaint. The court accordingly gave plaintiff 30 days from the date of the district

judge’s order adopting the findings and recommendations to file an amended complaint setting

Case 2:04-cv-00776-TLN-EFB Document 202 Filed 06/22/11 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

forth such a claim in sufficient detail. Plaintiff has to this date steadfastly refused to file an

amended complaint. See Dckt. No. 192 (“The Pltf. has allowed the passing of (30) days and has

declined to Amend the Equal Protection Claim. . . .”). The court further recommended dismissal

of plaintiff’s claims of excessive force against defendants Pribble, Wilbur, Kelsey, Briddle, St.

Andre, Weaver, Gower, and Brown for failure to exhaust. The court found that plaintiff had

exhausted some excessive force claims against defendants Houghland and Chapman, and thus

declined to recommend dismissal of those claims. The court also recommended that plaintiff’s

claims of unconstitutional conditions of confinement against defendants Bates and Arnold be

dismissed for failure to exhaust. 

The court then recommended that summary judgment be granted in defendants’ favor as

to plaintiff’s claims that defendants Bigford, Martinez, Little, and Doyle unconstitutionally

deprived him of hot food, paper, pen, request slips, complaint forms, phone calls, and yard

exercise for a period of ten days, but that summary judgment be denied as to plaintiff’s claims

that the same defendants unconstitutionally deprived him of a warm cell, clothing, sanitary

bedding, hygiene items, and showers during the same period. Summary judgment was warranted

on plaintiff’s claim for compensatory damages against these defendants, however. Summary

judgment in defendant’s favor was also recommended on plaintiff’s claims that defendant Hicks

subjected him to an unconstitutional strip search and unlawfully confiscated his medication.

The district judge adopted the recommendations on October 21, 2010. Dckt. No. 190. 

Accordingly, plaintiff’s case was reduced to certain claims against defendants Bigford, Martinez,

Little, and Doyle for unconstitutional conditions of confinement and for relief other than

compensatory damages, certain claims against defendants Houghland and Chapman for

excessive force, and a potential equal protection claim subject to plaintiff’s decision to amend

his complaint. As mentioned above, plaintiff has elected not to file an amended complaint

including a sufficiently specific equal protection claim. 

////

Case 2:04-cv-00776-TLN-EFB Document 202 Filed 06/22/11 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

On March 25, 2011, the court denied plaintiff’s request for a partial judgment under

Federal Rule of Civil Procedure 54(b) so that he could appeal the claims adjudicated against him

in the August 30, 2010 findings and recommendations and October 21, 2010 order, stating:

the claims that have been adjudicated in defendants’ favor thus far are interrelated

with the remaining claims – all claims arise out of the same sequence of events in

late 2002, early 2003, and some involve the same defendants. Allowing an

interlocutory appeal of some of plaintiff’s claims now would be inefficient and

piecemeal, as the appellate court may likely be faced with a second appeal

presenting similar issues and premised on the same facts once plaintiff’s

remaining claims have been finally adjudicated. Plaintiff has presented no reason 

justifying proceeding in that fashion rather than waiting for one cohesive

judgment to appeal at the end of this case.

Dckt. No. 196 (findings and recommendations issued February 3, 2011 and adopted March 25,

2011).

II. Request for a Certificate of Appealability

Plaintiff now seeks a certificate of appealability. Dckt. No. 200. However, it is clear that

plaintiff simply seeks again either to have partial judgment entered or to file an interlocutory

appeal, as no final judgment has been entered in this case. To the extent that plaintiff renews his

request for partial judgment, it is denied for the same reasons provided in the court’s prior

findings and recommendations and order, dated February 3, 2011 and March 25, 2011. To the

extent plaintiff seeks an order under 28 U.S.C. § 1292(b) authorizing an interlocutory appeal, the

court finds that such an appeal is not warranted here. See James v. Price Stern Sloan, Inc., 283

F.3d 1064, 1068 n.6 (9th Cir. 2002) (interlocutory appeal may be approved in “rare

circumstances”). Section 1292(b) is reserved for “‘extraordinary cases where decision of an

interlocutory appeal might avoid protracted and expensive litigation,’ such as ‘antitrust and

similar protracted cases.’” Id. (quoting United States Rubber Co. v. Wright, 359 F.2d 784, 785

(9th Cir. 1966)). The Ninth Circuit has explained § 1292(b) “was not intended merely to provide

review of difficult rulings in hard cases.” Wright, 359 F.2d at 785. Interlocutory appeals are

limited to “rare circumstances” because they are a “departure from the normal rule that only final

judgments are appealable.” James, 283 F.3d at 1067 n.6. “Routine resort to § 1292(b) requests

Case 2:04-cv-00776-TLN-EFB Document 202 Filed 06/22/11 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

would hardly comport with Congress’ design to reserve interlocutory review for ‘exceptional’

cases while generally retaining for the federal courts a firm final judgment rule.” Caterpillar,

Inc. v. Lewis, 519 U.S. 61, 74 (1996) (citations omitted). Plaintiff has not shown that the rulings

he wishes to appeal involve “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,” as § 1292(b) requires. Plaintiff’s case does not present

the type of rare circumstances warranting departure from the final judgment rule. Plaintiff may

seek appellate review once his remaining claims have been finally adjudicated and a final

judgment has been entered in this case.

III. Recommendation

For the foregoing reasons, it is hereby RECOMMENDED that plaintiff’s request for a

certificate of appealability be denied.

These findings and recommendations are submitted to the United States District Judge

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

within the specified time may waive the right to appeal the District Court’s order. Turner v.

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Dated: June 21, 2011.

Case 2:04-cv-00776-TLN-EFB Document 202 Filed 06/22/11 Page 4 of 4