Opinion
Civil Action No. 12-cv-01690-BNB
09-25-2012
ADAM DMYTRYSZYN, Plaintiff, v. JOHN HICKENLOOPER, Governor, TOM CLEMENTS, Executive Director, SUPERINTENDENT FAULK, CAPTAIN JOHN DOE, CORRECTIONAL OFFICER BRADYHOFF, ARISTEDES ZAVARES, Former Exec. Dir., and FORMER SUPERINTENDENT MILLIARD, Defendants.
ORDER OVERRULING OBJECTION
This matter is before the Court on the objection titled "Motion to Reconsider Order" (ECF No. 14) filed pro se on September 19, 2012, by Plaintiff, Adam Dmytryszyn. Mr. Dmytryszyn objects to Magistrate Judge Boyd N. Boland's minute order of September 13, 2012 (ECF No. 13), denying his motion for stay (ECF No. 12) filed on September 12, 2012. In the motion for stay, Mr. Dmytryszyn sought additional time in which to seek appellate review of a non-final order, i.e., the Order Directing Plaintiff to File Amended Complaint (ECF No. 8) of July 20, 2012.
On August 22, 2012, Mr. Dmytryszyn also filed an objection (ECF No. 10) to the order to file an amended complaint. On August 27, 2012, the objection was overruled (ECF No. 11). In his September 19 objection, Mr. Dmytryszyn contends Magistrate Judge Boland's September 13 minute order is erroneous. Mr. Dmytryszyn is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Sterling, Colorado.
Pursuant to 28 U.S.C. § 636(b)(1)(A) a judge may reconsider any pretrial matter designated to a magistrate judge to hear and determine where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law. The Court has reviewed the file and finds that Magistrate Judge Boland's September 13 minute order is not clearly erroneous or contrary to law.
Mr. Dmytryszyn may not appeal from the September 13 minute order because it is not a final order under 28 U.S.C. § 1291. The jurisdiction of the federal circuit courts ordinarily extends only to the final judgments of the federal district courts. United States v. Magnesium Corp. of America, 616 F.3d 1129, 1135 (10th Cir. 2010) (citing Van Cauwenberghe v. Biard, 486 U.S. 517, 521 (1988)). In addition, the September 13 order is not an interlocutory order reviewable by the federal courts of appeals pursuant to 28 U.S.C. § 1292(a) or (b). Furthermore, although not specifically requested by Mr. Dmytryszyn, the Court will not certify the September 13 minute order in this action for an interlocutory appeal because the order does not involve a controlling question of law as to which there is substantial ground for difference of opinion. See 28 U.S.C. § 1292(b).
"If the notice of appeal is deficient by reason of untimeliness, lack of essential recitals, reference to a non-appealable order, or otherwise, the district court may ignore it and proceed with the case." Arthur Andersen & Co. v. Finesilver, 546 F.2d 338, 340-41 (10th Cir. 1976). "Otherwise, a litigant could temporarily deprive a court of jurisdiction at any and every critical juncture." Hodgson v. Mahoney, 460 F.2d 326, 328 (1st Cir.), cert. denied, 409 U.S. 1039 (1972). Because Mr. Dmytryszyn may not appeal from the September 13 minute order, the Court will ignore Plaintiff's efforts to appeal from the minute order, and proceed with the case.
Accordingly, it is
ORDERED that the objection titled "Motion to Reconsider Order" (ECF No. 14) filed pro se on September 19, 2012, by Plaintiff, Adam Dmytryszyn, is overruled. It is
FURTHER ORDERED that the only filing the Court will consider in response to this order is the amended prisoner complaint the Court ordered Mr. Dmytryszyn to file on July 20, 2012.
DATED at Denver, Colorado, this 25th day of September , 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court