Richbourg v. Scott

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-10399
Summary Calendar
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DANIEL JOSEPH RICHBOURG, JR.,

Plaintiff-Appellant,

versus

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
RONALD D. DREWRY; THOMAS R. JONES, CO. III;
MIKE R. ALLISON, CO. III,

Defendants-Appellees.

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Appeal from the United States District Court for the
Northern District of Texas
(1:95-CV-136-C)
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November 19, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*

Appellant, an inmate in the Texas state prison system, appeals

the district court’s dismissal of certain of his claims against two

correctional officers. Because the challenged district court order

*
Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
is not a final judgment subject to appeal, we conclude that we lack

jurisdiction. Accordingly, we dismiss the appeal.

Appellant claims that he was assaulted by two prison guards

and that they conspired to falsify a disciplinary report against

him. Appellant brought a civil rights action under 42 U.S.C. §

1983 against the correctional officers, Thomas R. Jones and Mike

R. Allison, in their individual and official capacities.1

In an order and a separate judgment entered on January 19,

1996, the district court dismissed the conspiracy claim and all

claims against the correctional officers in their official

capacities. The court did not certify this judgment as final

pursuant to Fed. R. Civ. P. 54(b). Appellant’s claims against

appellees in their individual capacities were still pending.2

Nevertheless, appellant purports to appeal the district court’s

dismissal of the conspiracy and official capacity claims.3

1
Two supervisory officials also were named as defendants. The
district court rendered a final judgment pursuant to Fed. R. Civ.
P. 54(b) dismissing all claims against the supervisors, Ronald D.
Drewry, the prison warden, and Director Wayne Scott of the Texas
Department of Criminal Justice, Institutional Division. Appellant
has not appealed this partial final judgment, and the supervisors’
names have been deleted from the caption.
2
These claims were tried to a jury, which returned a verdict
for the defendants. Judgment was entered on July 25, 1996.
3
The state contends that this appeal is untimely. The state
misconstrues the applicable rules. The district court’s judgment
of dismissal was entered on January 19, 1996, giving appellant 30
days to file a notice of appeal. Fed. R. App. P. 4(a)(1). On
January 29, appellant timely filed what was, in effect, a motion to
alter or amend the judgment under Fed. R. Civ. P. 59(e). This
motion suspended the 30-day appeal period. Fed. R. App. P.

2
 We take up the issue of our appellate jurisdiction sua sponte.

See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). With

certain exceptions created by statute or judicial decision, our

jurisdiction is limited to review of final decisions of the

district courts. 28 U.S.C. §§ 1291, 1292. A final judgment “ends

the litigation on the merits and leaves nothing for the court to do

but execute the judgment.” Coopers and Lybrand v. Livesay, 437

U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (citation

and internal quotation marks omitted). The federal appellate

courts are authorized to review judgments dismissing “one or more

but fewer than all of the claims or parties,” but may do so only if

the district court expressly certifies that its order is final as

to those claims or parties. See Fed. R. Civ. P. 54(b); Dardar v.

Lafourche Realty Co., 849 F.2d 955, 957 (5th Cir. 1988); Save the

Bay, Inc. v. United States Army, 639 F.2d 1100, 1102 (5th Cir.

1981)(citations omitted). Absent a Rule 54(b) certification, the

partial disposition of a multi-claim action does not qualify as an

appealable final judgment. Dillon v. Mississippi Military Dep’t,

23 F.3d 915, 917 (5th Cir. 1994); Thompson v. Betts, 754 F.2d 1243,

4(a)(4). The district court denied the motion to alter or amend in
an order signed on March 8. This order was not entered on the
docket until March 12. The entry of this order reset the 30-day
clock, and appellant timely filed his notice of appeal on April 11.
“The 30-day period in which to notice an appeal runs from the date
of entry of the judgment or order appealed from ... and not from
the date of the filing of the order.” Coleman v. Holmes, 789 F.2d
1206, 1207 (5th Cir. 1986) (citations and internal quotation marks
omitted).

3
1245 (5th Cir. 1985).

The district court ruling challenged by appellant did not end

the litigation on the merits. It is not final, nor is it an

appealable interlocutory order. Finally, it was not certified as

a partial final judgment pursuant to Rule 54(b). It is therefore

beyond this court’s appellate jurisdiction.

The appeal is DISMISSED for lack of jurisdiction. Appellant

also has filed a “Motion to Reconsider” urging this court to review

the disposition below. This motion is not contemplated by the

federal rules of civil or appellate procedure and is not properly

addressed to this court. Accordingly, the motion is DISMISSED.

4