Maria Del Rosario Corona v. Mike Knowles , 423 F. App'x 695 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIA DEL ROSARIO CORONA, as No. 10-15398
heir of the Estate of Oscar Cruz,
D.C. No.1:08-cv-237-LJO-DLB
Plaintiff,
and
MEMORANDUM *
ANDRES SANTANA,
Plaintiff - Appellant,
v.
MIKE KNOWLES, Warden; CHRIS
CHRONES, Warden; S. FRAUNHEIM,
Facility D Captain; KELLY
HARRINGTON, Warden,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California,
Lawrence O’Neill, District Judge
Argued and Submitted February 18, 2011
San Francisco, California
Before: SCHROEDER and THOMAS, Circuit Judges, and ADELMAN, District
Judge.**
Plaintiff, an inmate at Kern Valley State Prison (“KVSP”), brought this
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Lynn S. Adelman, District Judge for the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
action under 42 U.S.C. § 1983 against the KVSP warden and others alleging that
defendants violated (1) his Fourteenth Amendment right to equal protection by
placing him in lockdown based on a racial classification, (2) his Fourteenth
Amendment right to due process by placing him in lockdown without an
individualized hearing, and (3) his Eighth Amendment right to engage in
reasonable exercise. The district court granted defendants’ motion to dismiss
plaintiff’s Fourteenth Amendment claims but allowed the Eighth Amendment
claim to proceed. Pursuant to 28 U.S.C. § 1292(a)(1), plaintiff now brings an
interlocutory appeal. We conclude that, under the circumstances, § 1292(a)(1)
does not confer appellate jurisdiction, and we therefore dismiss the appeal.
Section 1292(a)(1) authorizes an interlocutory appeal from an order
“granting, continuing, modifying, refusing or dissolving” an injunction. 28 U.S.C.
§ 1292(a)(1). In Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981), the
Supreme Court held that for an interlocutory order to be immediately appealable
under § 1292(a)(1), it must either expressly grant or deny injunctive relief or have
the practical effect of denying an injunction; create a serious, perhaps irreparable,
consequence; and be effectually challenged only by immediate appeal. Id. at 84. In
the present case, the district court did not expressly refuse to grant an injunction (at
no point in the case did plaintiff actually move for an injunction), but rather
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partially granted a motion to dismiss. Further, although the dismissal had the
practical effect of denying an injunction, its consequences are insufficiently serious
to satisfy the Carson standard. Plaintiff is not presently in lockdown, and it is
speculative that he will be placed in lockdown in the future. Moreover, his “failure
to promptly and actively seek [preliminary] injunctive relief ‘is a good indication
that the status quo can continue until the ultimate conclusion of the litigation
without interlocutory appellate review.’” S. Bend Consumers Club, Inc. v. United
Consumers Club, Inc., 742 F.2d 392, 394 (7th Cir. 1984) (quoting Shirey v.
Bensalem Twp., 663 F.2d 472, 476 (3d Cir. 1981)). Finally, plaintiff presents no
reason why he will not be able to appeal the dismissal of his Fourteenth
Amendment claims after resolving his Eighth Amendment claim in the district
court. See Gamboa v. Chandler, 101 F.3d 90, 91 (9th Cir. 1996). Thus, plaintiff’s
appeal is DISMISSED for lack of jurisdiction.
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