                                                                           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                           NOT FOR PUBLICATION                              MAR 21 2011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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