Free Motion for Miscellaneous Relief - District Court of Delaware - Delaware


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Date: February 26, 2008
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State: Delaware
Category: District Court of Delaware
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0 Case 1:07-cv-00244-JJF Document 37 Filed O2/26/2008 Page1 of3
ix
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na me UNITED strATE§‘D`I§TR‘f€*1%U`R?S"`_““" Sw{—-W
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HENRY 12. trAYtoR, .112.,- L
Pro se PETITIONER. § _
E G. A. NO. 07-244 JJF
"· ; - .
KATHLEEN D. FELDMAN et. al., E
_ MOTION FOR CERTIFICATION OF AN INTERLOCTORY
ORDER PURSUANT TO SECTION 28 U.S.C. 1292(b)
Petitioner, hereby moves this Honorable Court in the continued
exercise of its judicial function for an order certifying an -
interloctory appeal tc the U.S.Third Circuit Court of Appeals from
its February 1,-2008 order for the following reasons:
1. As already determined by this court the order in question
involves a "controlling question of well settled law".
2. However, Petitioner maintains there is a substantial
ground for difference of opinion under which an immediate appeal from
the intrloctory order may materially advance the ultimate termination
of the litigation.
3. Specificially, the substantial question For ground for
difference of opinion is concerning whether the acts of government I our
employees in executing the governmental policy resulting in destruction I
of court files renders the local county government as a municipality
within the definition of "persons" subject to liability under Section
1983. See e.g. Monell v. Dept. of Social Services, 436 U.S. 690 (1978).

J Case 1:07-cv-00244-JJF Document 37 Filed O2/26/2008 Page 2 of 3
For further clarification on petetioner's request for certification
also See e.g. Natale v. Camden County Correctional Facility,
318 F.3d 575, 584 (3rd Cir, 2003), Wherein one of the 3 situations
identified by the third circuit court of Appeals when the wrongs
committed by governmental employees involving policy as the moving
fprce behind the constitutional violation makes the municipality,
city, town, or county liable under Sec. 1983. _
For a U.S. Supreme Court authority on the topic of municipality or
county liability pursuant to Sec. 1983 See e.g.
Will v. Michigan Dept of state Police, U.S. 491 U.S. 58, 2304 (1989),
While the court held that neither state nor its officials acting in
their official capacities were "persons" liable under sec. 1983.
The Court. held to its previous decision in Monell under which makes
a county or municipality subject to liability as a "person" under
Sec. 1983 when the wrongful acts of its government employees involves
policy resulting in a constitutional violation. See e.g.
Long v. County Of Losangeles, 442 F2d 1187 (2006).
The Petitioner's postion as he stands to be corrected at pro—se status
is that based on this "controlling question of well settled law"
involving the difference of opinion should compel the court to certify
an interloctory order pursuant to 28 U.S.C. Sec. 1292 (b).; -
As such, the court lacks discrection to have rejected the amended
complaint on the basis of futility. See eYg} Williams v. Board kegents,7
441 F.3d 1287 (11th cir. 2006).
Finally, the failure to grant an immediate appeal would forever forclose
the right to appeal resulting in prejudice to the petitioner.
.»- E ¤ CONCLUSION
For the reasons outlined herein the petitioner respectfully
requests that this honorable court certify an interloctory
appeal.
Henry R. Taylor Jr.
Del. Corr. Center
g 1181 Paddock Rd. Smyrna,
Dated: \ CII O Del. 19977

J Case 1 :07-cv-00244-JJF Document 37 Filed O2/26/2008 Page 3 of 3
_ Certificate of Service
I, Henry R. Taylor Jr. ,hereby certify thatlhave served a true _
And correct cop(ies) ofthe attached: i“t€fl°°t°·fY Appeal l I
_ lMarc P. Niedzielskii n upcnthgfouounng
partieslperson (s):` _ _ ·
TO; Deputy Attorney General TO; _ " -
820 N. Erench St. V ‘ _ l
D Civil Division Wilmington, DE. I · g ‘
.19801 _ l I
TO: — I . TO: n _ `
_BY PLACING SAME IN A SEALED ENVELOPEA, and depositing same in the United . Ir
States Mail at the Delaware Correctional Center, Smyrna, DE 19977. I
On this jg- th ` day of F€b*?‘—l3l?Y ,200_§