                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-22-2009

Kelley Cooley v. Mark DiVecchio
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3325




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Kelley Cooley v. Mark DiVecchio" (2009). 2009 Decisions. Paper 1997.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1997


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
ALD-67                                                          NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-3325
                                     ___________

                              KELLEY TROY COOLEY,
                                              Appellant

                                           v.

                    COUNTY EXECUTIVE MARK DIVECCHIO;
                        ERIE COUNTY, PENNSYLVANIA
                     ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. Civil No. 06-cv-00178)
                     District Judge: Honorable Maurice B. Cohill
                     ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  December 24, 2008
             Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                           (Opinion filed : January 22, 2009)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Kelley Troy Cooley, a federal prisoner, filed an action under 42 U.S.C. § 1983

against Defendants Erie County, Pennsylvania (“Erie County”), and Erie County

Executive Mark DiVecchio (“DiVecchio”). Cooley alleged that Defendants created a
policy which imposed excessive bail upon him in violation of his Eighth Amendment

rights. He further claimed that the alleged excessive bail policy constituted “racial

profiling against blacks in Erie County,” which the District Court construed as an equal

protection claim under the Fourteenth Amendment.

       On November 7, 2007, Cooley moved for summary judgment and/or declaratory

judgment, claiming that Defendants failed to defend against the action. He then filed a

combined motion for injunctive relief and motion for summary judgment on January 4,

2008. Erie County filed a motion to dismiss the case, and DiVecchio moved for summary

judgment.

       On July 15, 2008, the District Court entered a memorandum order adopting the

April 18, 2008 Report and Recommendation of the magistrate judge assigned to pre-trial

matters in the case. The Order granted DiVecchio’s motion for summary judgment and

denied both Cooley’s first motion for summary judgment and/or declaratory judgment and

Erie County’s motion to dismiss. The following day, the District Court entered a second

memorandum order adopting the March 5, 2008 Report and Recommendation of the

magistrate judge denying Cooley’s motion for injunctive relief and motion for summary

judgment. Cooley appealed the rulings. The case remains pending in the District Court

and the parties are proceeding with discovery.

                                             II.

       For reasons set forth below, we do not have appellate jurisdiction to review the



                                             2
District Court’s July 15, 2008 Order. We also do not have jurisdiction to review the

District Court’s July 16, 2008 Order to the extent that it denied Cooley’s motion for

summary judgment. We will review, however, the July 16, 2008 Order to the extent that

it denied Cooley’s motion for injunctive relief, as we have jurisdiction to do so pursuant

to 28 U.S.C. § 1292(b). We review a district court’s ruling on a preliminary injunction

only to determine if there has been (1) an abuse of discretion; (2) an error of law; or (3) a

clear mistake of fact. Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 198 (3d Cir.

1990).

         A.     July 15, 2008 Order and July 16, 2008 Order Denying Cooley’s Motions for
                Summary Judgment

         We lack jurisdiction at this time to review the District Court’s July 15, 2008 Order

as well as the July 16, 2008 Order to the extent that it denied Cooley’s second summary

judgment motion. An order entered by a District Court deciding fewer than all of the

claims, or determining the rights and liabilities of fewer than all of the parties, is not

immediately appealable unless the District Court directed entry of a final judgment

pursuant to Fed. R. Civ. P. 54(b). See Hill v. City of Scranton, 411 F.3d 118, 124 (3d Cir.

2005). Neither District Court order dismissed all of the claims as to all of the parties.

Moreover, the District Court did not direct entry of judgment under Rule 54(b).

Accordingly, appellate review of these Orders is not available at this time.

         B.     July 16, 2008 Order Denying Cooley’s Motion for Injunctive Relief

         The final judgment rule embodied in 28 U.S.C. § 1291 ensures that ordinarily a

                                               3
party may appeal only from a final judgment of the district court. However, a limited

exception exists under 28 U.S.C. § 1292(a)(1), one which permits appeals to be taken

from interlocutory orders of the district courts of the United States “granting, continuing,

modifying, refusing or dissolving injunctions, or refusing to dissolve or modify

injunctions.” See United States v. Wade, 713 F.2d 49, 52 (3d Cir. 1983). For an

interlocutory order to be immediately appealable, a litigant may show that “the district

court’s order has the practical effect of refusing an injunction.” Wade, 713 F.2d at 53.

       Cooley, in his motion for injunctive relief, argued that he was entitled to release on

bail while he appealed his state court conviction. After the trial court denied his petition

for bail, he appealed the determination to the Superior Court of Pennsylvania. Cooley

claimed in his motion that he would suffer “irreparable harm” if the District Court did not

either issue an injunction that ordered his immediate release on bail pending his appeal or

direct the state appellate courts to rule on his pending application for bail. After holding a

hearing on the issue, the magistrate judge denied Cooley’s motion. The District Court

adopted the magistrate judge’s report and recommendation and later denied

reconsideration.

       Based upon our review of the state court docket, which is public, it appears that

both the Superior Court of Pennsylvania and the Supreme Court of Pennsylvania have

now ruled on Cooley’s petition for bail release. The Superior Court affirmed the trial

court’s decision denying bail on October 4, 2007 and the Pennsylvania Supreme Court



                                              4
denied review of Cooley’s Petition for Review on August 21, 2008. We may “take

judicial notice of facts that are ‘capable of accurate and ready determination by resort to

sources whose accuracy cannot be reasonably questioned.’” Oran v. Stafford, 226 F.3d

275, 289 (3d Cir. 2000) (quoting Fed. R. Evid. 201(b)(2)). Because the state appellate

courts have already ruled on Cooley’s petition for bail, his request that the District Court

direct the state courts to do so is moot.

       Moreover, it would have been inappropriate for the District Court to interfere in

Cooley’s state court criminal proceedings, or grant him bail pending appeal, pursuant to

the abstention theory articulated in Younger v. Harris, 401 U.S. 37, 91 (1971). For the

Younger doctrine to apply, state court proceedings must be pending or ongoing, the state

proceedings must implicate an important state interest, and the state proceedings must

afford an adequate opportunity to raise constitutional issues. See Taliaferro v. Darby

Twp. Zoning Bd., 458 F.3d 181, 192 (3d Cir. 2006); see also Suggs v. Brannon, 804 F.2d

274, 278 (3d Cir. 1986). All three elements were satisfied in this case and the District

Court was right to refrain from interfering in the state court action.1

       For the foregoing reasons, we conclude that the District Court’s determination was

proper. As there is no substantial question presented by this appeal, we will summarily

affirm. See Third Cir. LAR 27.4; I.O.P. 10.6. Petitioner’s motion to intervene and



   1
   To the extent Cooley sought declaratory and/or injunctive relief regarding Erie
County bail practice as it applies to others, the District Court properly concluded that
Cooley lacked standing to assert the claim.

                                              5
demand for stay are DENIED.




                              6
