1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PUNAOFO TSQUITO TILEI, Case No.: 3:19-cv-01708-WQH-KSC
Plaintiff, 12 ORDER v. 13 14 CALIFORNIA DEP’T OF CORRECTION AND 15 REHABILITATION; DR. DAVID 16 CLAYTON; DR. PEYMAN SHAKIBA; DR. SAHA; JASHUA 17 N. DOROS; and DOES 1-10, 18 Defendants. 19 HAYES, Judge: 20 The matter before the Court is the Motion Stand on His Pleadings and the Request 21 for a Final Judgment of Dismiss to Allow for Appeal filed by Plaintiff Punaofo Tsquito 22 Tilei. (ECF No. 29). 23 24 PROCEDURAL BACKGROUND 25 On September 7, 2019, Plaintiff Punaofo Tsquito Tilei, a state prisoner proceeding 26 pro se, initiated this action by filing a civil rights Complaint pursuant to 42 U.S.C. § 1983. 27 (ECF No. 1). On the same day, Plaintiff filed a Motion for Leave to Proceed in Forma 28 Pauperis. (ECF No. 2). On September 23, 2019, Plaintiff filed a Motion to Appoint 1 Counsel. (ECF No. 5). On September 24, 2019, Plaintiff filed a second Motion for Leave 2 to Proceed in Forma Pauperis. (ECF No. 7). On October 15, 2019, Plaintiff filed an 3 Emergency Request for Preliminary Injunction. (ECF No. 9). 4 On October 17, 2019, the Court issued an Order granting Plaintiff’s Motions to 5 Proceed in Forma Pauperis (ECF Nos. 2, 7) and denying Plaintiff’s Motion to Appoint 6 Counsel (ECF No. 5). (ECF No. 10). 7 On November 7, 2019, Plaintiff filed a Motion for Reconsideration of this Court’s 8 October 17, 2019 Order denying appointment of counsel. (ECF No. 13). On December 9 11, 2019, this Court issued an Order denying Plaintiff’s Motion for Reconsideration (ECF 10 No. 13). (ECF No. 18). 11 On February 19, 2020, the Court issued an Order denying Plaintiff’s Emergency 12 Request for Preliminary Injunction (ECF No. 9). (ECF No. 25). 13 On March 12, 2020, Plaintiff filed a Motion Stand on His Pleadings and a Request 14 for a Final Judgment of Dismiss to Allow for Appeal. (ECF No. 29). On March 27, 2020, 15 Defendants filed a Response in opposition. (ECF No. 31). On April 13, 2020, Plaintiff 16 filed a Reply. (ECF No. 32). 17 CONTENTIONS OF THE PARTIES 18 Plaintiff gives notice that he stands on his pleadings regarding his request for counsel 19 and his request for an emergency preliminary injunction. Plaintiff requests a final 20 judgment of dismissal in order to pursue an appeal. Defendants contend that the dismissal 21 of Plaintiff’s claims would constitute an impermissible manipulation of appellate 22 jurisdiction. Defendants assert that Plaintiff is free to voluntarily dismiss this action at any 23 time. Defendants contend that the Court’s October 17, 2019 Order denying Plaintiff’s 24 Motion to Appoint Counsel (ECF No. 10); December 11, 2019 Order denying Plaintiff’s 25 Motion for Reconsideration (ECF No. 18); and February 19, 2020 Order denying Plaintiff’s 26 Emergency Request for Preliminary Injunction (ECF No. 25) are immediately reviewable 27 pursuant to interlocutory appeal. 28 1 DISCUSSION 2 “A party may not engage in manipulation either to create appellate jurisdiction or 3 prevent it.” Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 885 (9th Cir. 2003) 4 (citations omitted). “Manipulation of jurisdiction has arisen in several different contexts.” 5 Id. For example, parties may “attempt[ ] to create appellate jurisdiction over interlocutory 6 orders by provoking the district court to dismiss their actions for failure to prosecute.” Id. 7 (citation omitted). “Manipulation is also apparent when the parties agree to waive the 8 statute of limitations for dismissed claims.” Id. (citation omitted). “Agreements to dismiss 9 claims without prejudice also suggest manipulation.” Id. 10 In American States Ins. Co., “both parties … attempted to create appellate 11 jurisdiction through manipulation.” Id. “[T]he record show[ed] that the parties discussed 12 their attempts to create appellate jurisdiction.” Id. “A joint status report stated that they 13 ‘agreed to allow judgment to be entered based on the summary judgment rulings by the 14 Court so the duty to defend issue [could] be appealed.’” Id. at 885-86 (alteration in 15 original). The Court of Appeals concluded that 16 Overall, the parties appear to have colluded to manufacture appellate jurisdiction by dismissing their indemnity claims after the district court’s 17 grant of partial summary judgment. Moreover, the parties appear ready to 18 pursue those claims [re]gardless of the outcome of this appeal, undermining the policies upholding the final judgment rule. 19
20 Id. at 891. 21 Plaintiff states that he “stand[s] on [his] pleadings” and “request[s] that the Court 22 issue a final judgment of dismissal to allow [him] to pursue an appeal to the United States 23 Ninth Circuit Court ….” (ECF No. 29 at 7). The Court concludes that Plaintiff has 24 “attempted to create appellate jurisdiction through manipulation.” Am. States Ins. Co., 318 25 F.3d at 885. Plaintiff may procced by “(1) dismissing with prejudice the claims on which 26 [this Court has] not ruled, or (2) obtaining a Rule 54(b) judgment from [this Court].” Id. 27 at 892. 28 1 “As a general rule, appellate jurisdiction is limited to ‘final decisions of the district 2 courts of the United States.’” Nat. Res. Def. Council v. Cty. of Los Angeles, 840 F.3d 1098, 3 1101 (9th Cir. 2016) (citation omitted). “To be immediately appealable, an interlocutory 4 order denying counsel to a section 1983 plaintiff under section 1915[] must fit within the 5 ‘collateral order’ exception to the final judgment rule of 28 U.S.C. § 1291.” Wilborn v. 6 Escalderon, 789 F.2d 1328, 1330 (9th Cir. 1986) (citation omitted). The Court of Appeals 7 has held that such orders are “not immediately appealable” “[b]ecause the denial of counsel 8 in a civil rights action brought under 42 U.S.C. § 1983 does not resolve an important issue 9 completely separate from the merits ….” Id. (citations omitted). On October 17, 2019, the 10 Court issued an Order denying Plaintiff’s Motion to Appoint Counsel. (ECF No. 10). 11 Plaintiff is not permitted to appeal the Court’s denial of his Motion to Appoint Counsel 12 until a final judgment is entered. See e.g. Arellano v. Blahnik, No. 16-cv-02412-CAB 13 (RNB), 2018 WL 4599697, at *3 (S.D. Cal. Sept. 25, 2018) (“To the extent plaintiff’s is 14 requesting permission to appeal to the Ninth Circuit the Court’s denial of his motion for 15 appointment of counsel, his request is denied. In Wilborn, 789 F.2d at 1330, the Ninth 16 Circuit held that the denial of a § 1983 plaintiff’s request for counsel was not immediately 17 appealable as a ‘collateral order’ exception to the final judgment rule of 28 U.S.C. § 18 1291.”). 19 28 U.S.C. § 1292(a)(1) states that 20 (a) … the courts of appeals shall have jurisdiction of appeals from:
21 (1) Interlocutory orders of the district courts of the United States … granting, 22 continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in 23 the Supreme Court; 24 25 28 U.S.C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PUNAOFO TSQUITO TILEI, Case No.: 3:19-cv-01708-WQH-KSC
Plaintiff, 12 ORDER v. 13 14 CALIFORNIA DEP’T OF CORRECTION AND 15 REHABILITATION; DR. DAVID 16 CLAYTON; DR. PEYMAN SHAKIBA; DR. SAHA; JASHUA 17 N. DOROS; and DOES 1-10, 18 Defendants. 19 HAYES, Judge: 20 The matter before the Court is the Motion Stand on His Pleadings and the Request 21 for a Final Judgment of Dismiss to Allow for Appeal filed by Plaintiff Punaofo Tsquito 22 Tilei. (ECF No. 29). 23 24 PROCEDURAL BACKGROUND 25 On September 7, 2019, Plaintiff Punaofo Tsquito Tilei, a state prisoner proceeding 26 pro se, initiated this action by filing a civil rights Complaint pursuant to 42 U.S.C. § 1983. 27 (ECF No. 1). On the same day, Plaintiff filed a Motion for Leave to Proceed in Forma 28 Pauperis. (ECF No. 2). On September 23, 2019, Plaintiff filed a Motion to Appoint 1 Counsel. (ECF No. 5). On September 24, 2019, Plaintiff filed a second Motion for Leave 2 to Proceed in Forma Pauperis. (ECF No. 7). On October 15, 2019, Plaintiff filed an 3 Emergency Request for Preliminary Injunction. (ECF No. 9). 4 On October 17, 2019, the Court issued an Order granting Plaintiff’s Motions to 5 Proceed in Forma Pauperis (ECF Nos. 2, 7) and denying Plaintiff’s Motion to Appoint 6 Counsel (ECF No. 5). (ECF No. 10). 7 On November 7, 2019, Plaintiff filed a Motion for Reconsideration of this Court’s 8 October 17, 2019 Order denying appointment of counsel. (ECF No. 13). On December 9 11, 2019, this Court issued an Order denying Plaintiff’s Motion for Reconsideration (ECF 10 No. 13). (ECF No. 18). 11 On February 19, 2020, the Court issued an Order denying Plaintiff’s Emergency 12 Request for Preliminary Injunction (ECF No. 9). (ECF No. 25). 13 On March 12, 2020, Plaintiff filed a Motion Stand on His Pleadings and a Request 14 for a Final Judgment of Dismiss to Allow for Appeal. (ECF No. 29). On March 27, 2020, 15 Defendants filed a Response in opposition. (ECF No. 31). On April 13, 2020, Plaintiff 16 filed a Reply. (ECF No. 32). 17 CONTENTIONS OF THE PARTIES 18 Plaintiff gives notice that he stands on his pleadings regarding his request for counsel 19 and his request for an emergency preliminary injunction. Plaintiff requests a final 20 judgment of dismissal in order to pursue an appeal. Defendants contend that the dismissal 21 of Plaintiff’s claims would constitute an impermissible manipulation of appellate 22 jurisdiction. Defendants assert that Plaintiff is free to voluntarily dismiss this action at any 23 time. Defendants contend that the Court’s October 17, 2019 Order denying Plaintiff’s 24 Motion to Appoint Counsel (ECF No. 10); December 11, 2019 Order denying Plaintiff’s 25 Motion for Reconsideration (ECF No. 18); and February 19, 2020 Order denying Plaintiff’s 26 Emergency Request for Preliminary Injunction (ECF No. 25) are immediately reviewable 27 pursuant to interlocutory appeal. 28 1 DISCUSSION 2 “A party may not engage in manipulation either to create appellate jurisdiction or 3 prevent it.” Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 885 (9th Cir. 2003) 4 (citations omitted). “Manipulation of jurisdiction has arisen in several different contexts.” 5 Id. For example, parties may “attempt[ ] to create appellate jurisdiction over interlocutory 6 orders by provoking the district court to dismiss their actions for failure to prosecute.” Id. 7 (citation omitted). “Manipulation is also apparent when the parties agree to waive the 8 statute of limitations for dismissed claims.” Id. (citation omitted). “Agreements to dismiss 9 claims without prejudice also suggest manipulation.” Id. 10 In American States Ins. Co., “both parties … attempted to create appellate 11 jurisdiction through manipulation.” Id. “[T]he record show[ed] that the parties discussed 12 their attempts to create appellate jurisdiction.” Id. “A joint status report stated that they 13 ‘agreed to allow judgment to be entered based on the summary judgment rulings by the 14 Court so the duty to defend issue [could] be appealed.’” Id. at 885-86 (alteration in 15 original). The Court of Appeals concluded that 16 Overall, the parties appear to have colluded to manufacture appellate jurisdiction by dismissing their indemnity claims after the district court’s 17 grant of partial summary judgment. Moreover, the parties appear ready to 18 pursue those claims [re]gardless of the outcome of this appeal, undermining the policies upholding the final judgment rule. 19
20 Id. at 891. 21 Plaintiff states that he “stand[s] on [his] pleadings” and “request[s] that the Court 22 issue a final judgment of dismissal to allow [him] to pursue an appeal to the United States 23 Ninth Circuit Court ….” (ECF No. 29 at 7). The Court concludes that Plaintiff has 24 “attempted to create appellate jurisdiction through manipulation.” Am. States Ins. Co., 318 25 F.3d at 885. Plaintiff may procced by “(1) dismissing with prejudice the claims on which 26 [this Court has] not ruled, or (2) obtaining a Rule 54(b) judgment from [this Court].” Id. 27 at 892. 28 1 “As a general rule, appellate jurisdiction is limited to ‘final decisions of the district 2 courts of the United States.’” Nat. Res. Def. Council v. Cty. of Los Angeles, 840 F.3d 1098, 3 1101 (9th Cir. 2016) (citation omitted). “To be immediately appealable, an interlocutory 4 order denying counsel to a section 1983 plaintiff under section 1915[] must fit within the 5 ‘collateral order’ exception to the final judgment rule of 28 U.S.C. § 1291.” Wilborn v. 6 Escalderon, 789 F.2d 1328, 1330 (9th Cir. 1986) (citation omitted). The Court of Appeals 7 has held that such orders are “not immediately appealable” “[b]ecause the denial of counsel 8 in a civil rights action brought under 42 U.S.C. § 1983 does not resolve an important issue 9 completely separate from the merits ….” Id. (citations omitted). On October 17, 2019, the 10 Court issued an Order denying Plaintiff’s Motion to Appoint Counsel. (ECF No. 10). 11 Plaintiff is not permitted to appeal the Court’s denial of his Motion to Appoint Counsel 12 until a final judgment is entered. See e.g. Arellano v. Blahnik, No. 16-cv-02412-CAB 13 (RNB), 2018 WL 4599697, at *3 (S.D. Cal. Sept. 25, 2018) (“To the extent plaintiff’s is 14 requesting permission to appeal to the Ninth Circuit the Court’s denial of his motion for 15 appointment of counsel, his request is denied. In Wilborn, 789 F.2d at 1330, the Ninth 16 Circuit held that the denial of a § 1983 plaintiff’s request for counsel was not immediately 17 appealable as a ‘collateral order’ exception to the final judgment rule of 28 U.S.C. § 18 1291.”). 19 28 U.S.C. § 1292(a)(1) states that 20 (a) … the courts of appeals shall have jurisdiction of appeals from:
21 (1) Interlocutory orders of the district courts of the United States … granting, 22 continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in 23 the Supreme Court; 24 25 28 U.S.C. § 1292(a)(1). The Court of Appeals has “held that when a district court 26 ‘specifically denie[s] [a] request for an injunction,’ the ‘appeal … falls squarely within the 27 language of section 1292(a)(1).’” Nat. Res. Def. Council, 840 F.3d at 1101 (alterations in 28 original) (citation omitted). On February 19, 2020, the Court issued an Order denying 1 || Plaintiff's Emergency Request for Preliminary Injunction. (ECF No. 25). Plaintiff may 2 ||file an interlocutory appeal of this Court’s February 19, 2020 Order as one that “falls 3 squarely within the language of section 1292(a)(1).” Nat. Res. Def: Council, 840 F.3d at 4 || 1101 Gnternal quotation marks and citation omitted). 5 CONCLUSION 6 IT IS HEREBY ORDERED that Plaintiff’s Motion Stand on His Pleadings and 7 || Plaintiff's Request for a Final Judgment of Dismiss to Allow for Appeal (ECF No. 29) is 8 || DENIED. 9 || Dated: May 4, 2020 itt Z. A a 10 Hon. William Q. Hayes ll United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28