United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2006
Charles R. Fulbruge III
Clerk
No. 04-51283
Summary Calendar
JAMES K. TERRELL,
Plaintiff-Appellant,
versus
CITY OF EL PASO; CARLOS LEON, Chief; ALFONSO NEVAREZ, Officer;
SAUL VILLALOBOS, Officer; RODNEY MOOERS, Officer; MARK TELLES,
Officer; DEBRA PONKO, Officer; ROBERT ROMERO, Officer; JACK
MATTHEWS, Sergeant; HARRY FARLOW, Sergeant; WADE FORRISTER,
Sergeant; ANNA NAVEDO, Detective; TED PORRAS, Detective; COUNTY
OF EL PASO; JAIME ESPARZA, Individually and as District Attorney;
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
(3:03-CV-364)
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Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant James K. Terrell appeals the district
court’s denial of his motion for declaratory judgment and his
motion to recuse Judge Kathleen Cardone.1 As we are without
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
1
This opinion is rendered contemporaneously with our
opinion in James K. Terrell v. City of El Paso, 04-51281 (5th
Cir. Apr. __, 2006) (unpublished).
jurisdiction to review the denial of either motion, this appeal is
dismissed without prejudice.
With some exceptions not applicable here, our jurisdiction
extends only to final decisions of the district court.2 In
general, a “final decision” is one that “ends the litigation on the
merits and leaves nothing for the [district] court to do but
execute the judgment.”3 Terrell’s appeal is ineffective at this
time because there are still claims and issues pending in the
district court, including the City’s, County’s, and District
Attorney’s motions for summary judgment.
We are thus without jurisdiction to review the district
court’s denial of Terrell’s motion for declaratory judgment because
it is not a final decision. In fact, the district court did not
even reach the merits of the motion, but instead denied it without
prejudice because of Terrell’s failure to comply with the district
court’s local rule on filing such motions.
We likewise lack jurisdiction to consider Terrell’s appeal
from the district court’s denial of his motion to recuse.
2
See 28 U.S.C. § 1291 (“The courts of appeals ... shall
have jurisdiction of appeals from all final decisions of the
district courts of the United States ....”).
3
McLaughlin v. Miss. Power Co., 376 F.3d 344, 350 (5th Cir.
2004) (citation omitted).
2
Questions concerning the disqualification of judges are not
immediately appealable.4
Accordingly, we do not reach the merits of Terrell’s appeal
from the denial of his motion for declaratory judgment and his
motion to recuse. This appeal is
DISMISSED without PREJUDICE.
4
In re Corrugated Container Antitrust Litig., 614 F.2d 958,
960-61 (5th Cir. 1980). We acknowledge that our holding on the
absence of appellate jurisdiction to review the denial of a
motion to recuse is inconsistent with another panel’s disposition
of the same issue in the related case of Jacob Telles v. City of
El Paso, 04-51298 (5th Cir. Jan. 25, 2006) (unpublished). But
Corrugated, which predates Telles, is the controlling precedent
and we must follow it.
3