United States District Court, D. Kansas
PATRICK C. LYNN, Plaintiff,
CHARLIE WILLNAUER, et al., Defendants.
ROBINSON CHIEF U.S. DISTRICT JUDGE.
Patrick C. Lynn, brings this pro se civil rights case under
42 U.S.C. § 1983. Plaintiff is incarcerated at the
Lansing Correctional Facility in Lansing, Kansas. On August
1, 2019, the Court entered an Order (Doc. 10) denying
Plaintiff's motion for leave to proceed in forma pauperis
(Doc. 4), and denying Plaintiff's Motion for Filing Fee
Waiver Based on Imminent Dangers of Serious Physical Injury
(Doc. 3-1). The Order required Plaintiff, who is a
three-strikes litigant, to submit the $400.00 filing fee by
August 19, 2019, and notified him that his failure to pay the
full filing fee within the allowed time will result in the
dismissal of this action without prejudice. Instead of
complying with the Order, Plaintiff filed a Notice of
Interlocutory Appeal (Doc. 13) on August 9, 2019.
Court's ruling on Plaintiff's motions does not
warrant certification of an interlocutory appeal. The Tenth
Circuit Court of Appeals has jurisdiction to hear appeals
only from “final decisions” of district courts.
Larson-White v. Rohling, No. 08-3246-SAC, 2008 WL
5427783, at *1 (D. Kan. Dec. 31, 2008) (citing 28 U.S.C.
§ 1291). “In light of this statutory limitation,
interlocutory appeals are the exception and not the
rule.” Id. (citing Myers v. Oklahoma Cty.
Bd. of Comm'rs., 80 F.3d 421, 424 (10th Cir.),
cert. denied, 519 U.S. 963 (1996) (citing
Johnson v. Jones, 515 U.S. 304, 308 (1995)); see
also Carpenter v. Boeing Co., 456 F.3d 1183, 1189 (10th
Cir. 2006) (“Interlocutory appeals have long been
disfavored in the law, and properly so.”).
interlocutory appeal must be evaluated under 28 U.S.C. §
1292(b), which provides for appeals from interlocutory
decisions in very limited circumstances. Section 1292(b)
provides in pertinent part:
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such 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, he shall so state in writing in such order. The
Court of Appeals . . . may thereupon, in its discretion,
permit an appeal to be taken from such order, if application
is made to it within ten days after the entry of the order.
Provided, however, that application for an appeal
hereunder shall not stay proceedings in the district court
unless the district judge or the Court of Appeals or a judge
thereof shall so order.
28 U.S.C. § 1292(b).
of interlocutory appeals is “limited to extraordinary
cases in which extended and expensive proceedings probably
can be avoided by immediate and final decision of controlling
questions encountered early in the action.”
Larson-White, 2008 WL 5427783, at *1 (citing
State of Utah By and Through Utah State Dep't of
Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th
Cir.) (citing S. Rep. 2434, 1958 U.S.C.C.A.N. at 5262),
cert. denied, 513 U.S. 872 (1994)).
Court does not find that an immediate appeal from the
Court's non-dispositive order could materially advance
the ultimate resolution of this matter. The Court's
ruling does not involve a controlling question of law as to
which there is substantial ground for difference of opinion.
Therefore, the Court declines to order certification of this
case for interlocutory appeal.
Court denied Plaintiff leave to proceed in forma pauperis at
the district court level and Plaintiff has not satisfied the
district court filing fee prerequisite. As a three-strikes
litigant,  he is likewise not entitled to appeal
without prepaying the appellate filing fee unless he shows
imminent danger arising from the allegations raised in his
Complaint or this appeal. The Court finds that Plaintiff has
not shown imminent danger as set forth in the Court's
Order at Doc. 10. Therefore, the Court also denies Plaintiff
leave to appeal in forma pauperis. Section 1915(g) prohibits
a three-strikes prisoner from bringing a civil action or
appeal “unless the prisoner is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g).
Because Plaintiff has not shown that he meets the only
exception set forth in § 1915(g), the Court denies leave
to appeal in forma pauperis.
Court warns Plaintiff that this matter is not automatically
stayed by an interlocutory appeal. Thus, the time set by the
Court for Plaintiff to pay the district court filing fee in
full or suffer dismissal of this case in unchanged.
IS THEREFORE ORDERED that the Court declines to
certify Plaintiff's interlocutory appeal (Doc. 13), and
denies Plaintiff leave to proceed without prepayment of fees
IS SO ORDERED.