Opinion
Civil Action No. 18-cv-03353-CMA-NRN
11-04-2019
MICHAEL MCGOWAN, Plaintiff, v. D. HUDDLESTON, ADX NURSE, JONES, ADX NURSE, WILLIAMS, ADX NURSE, D. MURTON, LIEUTENANT, D. BEHLE, LIEUTENANT, S. SCARBROUGH, LIEUTENANT, J. ARMIJO, LIEUTENANT, M. PALIDER, LIEUTENANT, N. RUDD, LIEUTENANT, Defendants.
ORDER CERTIFYING APPEAL AS FRIVOLOUS
This matter is before the Court on Plaintiff Michael McGowan's Notice of Appeal (Doc. # 48). Based on the reasons that follow, the Court certifies Plaintiff's appeal as frivolous and, therefore, retains jurisdiction in this case.
I. BACKGROUND
The Court will reiterate the factual background only to the extent necessary to address Plaintiff's appeal.
On July 16, 2019, Defendants filed a Motion for Summary Judgment (Doc. # 27). The Court referred Defendants' Motion to Magistrate Judge N. Reid Neureiter on that day (Doc. # 29). On August 27, 2019, Magistrate Judge Neureiter held a hearing on Defendants' Motion and took the Motion under advisement (Doc. # 41). As of the date of this Order, Magistrate Judge Neureiter has not issued a Report and Recommendation as to Defendants' Motion for Summary Judgment and this Court has not ruled on Defendants' Motion.
On October 11, 2019, Plaintiff filed a Notice of Appeal to the Tenth Circuit (Doc. # 48). The Notice, dated October 8, 2019, reads:
Notice is hereby given that MICHAEL MCGOWAN, Plaintiff in the above named case, hereby appeal [sic] to the United States Court of Appeals for the 10th Circuit from the final judgment entered in this action on the 7th day of October, 2019.(Id.) On October 23, 2019, Plaintiff filed a letter with the Court that reads:
Also I attached a Motion For Appeal. I did not know the status of this civil action and by me not have [sic] access to the law library I could not obtain verification, so to be safe I filed my Appeal. Please disregard my Appeal. Thanks[.](Doc. # 51.)
II. DISCUSSION
A. THIS COURT RETAINS JURISDICTION
1. Applicable Law
"The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). However, the Tenth Circuit has held that:
Because this divestiture of jurisdiction is subject to abuse and can unreasonably delay trial, we recognized in Stewart v. Donges, 915 F.2d
572 (10th Cir. 1991) a procedure by which a district court may maintain jurisdiction [in] a [case] if the court certifies that [an] appeal is frivolous.Langley v. Adams Cnty., Colo., 987 F.2d 1473, 1477 (10th Cir. 1993). Specifically, "to regain jurisdiction, [a district court] must take the affirmative step of certifying the appeal as frivolous or forfeited . . . ." Stewart, 915 F.2d at 577; see also Valentine v. PNC Fin. Servs. Grp., Inc., No. 18-CV-01934-CMA-SKC, 2019 WL 5085306, at *1 (D. Colo. Oct. 9, 2019) (certifying Plaintiff's appeal as frivolous and subsequently denying Plaintiff's motion for reconsideration). An appeal is frivolous if "the result is obvious or . . . the appellant's arguments are wholly without merit." Barnes v. Sec. Life of Denver Ins. Co., No. 18-cv-718-WJM-SKC, 2019 WL 142113, at *2 (D. Colo. Jan. 9, 2019) (citation omitted).
It is well established that "federal circuit courts have jurisdiction to review only 'final decisions' of district courts." Spring Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1015 (10th Cir. 2018) (citation omitted); 28 U.S.C. § 1291. A "final decision must dispose of all claims by all parties, except a decision may otherwise be considered final if it is properly certified as a final judgment under Federal Rule of Civil Procedure 54(b)." New Mexico v. Trujillo, 813 F.3d 1308, 1316 (10th Cir. 2016).
2. Analysis
In the instant case, Plaintiff's Notice of Appeal is frivolous. Plaintiff did not appeal any judgment of this Court. A review of the docket demonstrates that no case activity took place on October 7, 2019, the alleged date of the judgment on appeal here (Doc. # 48). Plaintiff notified the Court that he was unaware of what was happening in this case at the time he filed his Appeal and that he filed the Appeal "to be safe" (Doc. # 51). Additionally, Plaintiff has asked the Court to disregard his Appeal (Id.). No final judgment has entered in this case, so there is no order appealable for purposes of 28 U.S.C. § 1291. See Spring Creek, 887 F.3d at 1015.
III. CONCLUSION
Because it is obvious from a review of the docket that there is no final judgment capable of being appealed in this case, the Court hereby certifies Plaintiff's Notice of Appeal (Doc. # 48) as frivolous. As a result, this Court retains jurisdiction to consider the merits of this case. Stewart, 915 F.2d at 577.
DATED: November 4, 2019, 2019
BY THE COURT:
/s/_________
CHRISTINE M. ARGUELLO
United States District Judge