PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SALVATORE J. CULOSI, personally
and as personal representative and
administrator of the estate of Dr.
Salvatore J. Culosi, deceased;
ANITA L. CULOSI, personally and as
personal representative and
administrator of the estate of Dr.
Salvatore J. Culosi,
Plaintiffs-Appellees,
v.
DEVAL BULLOCK, Officer,
individually and in his official
capacity as Fairfax County Police
No. 09-1042
Officer,
Defendant-Appellant,
and
FAIRFAX COUNTY, VIRGINIA; DAVID
M. ROHRER, Colonel, in his official
capacity as Chief of Police; JAMES
KELLAM, individually and in his
official capacity; UNITED STATES OF
AMERICA,
Defendants.
2 CULOSI v. BULLOCK
SALVATORE J. CULOSI, personally
and as personal representative and
administrator of the estate of Dr.
Salvatore J. Culosi, deceased;
ANITA L. CULOSI, personally and as
personal representative and
administrator of the estate of Dr.
Salvatore J. Culosi,
Plaintiffs-Appellants,
v.
FAIRFAX COUNTY, VIRGINIA; JAMES
KELLAM, individually and in his No. 09-1104
official capacity; DAVID M.
ROHRER, Colonel, in his official
capacity as Chief of Police,
Defendants-Appellees,
and
UNITED STATES OF AMERICA; DEVAL
BULLOCK, Officer, individually and
in his official capacity as Fairfax
County Police Officer,
Defendants.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:07-cv-00266-LMB-TCB)
Argued: October 28, 2009
Decided: February 22, 2010
Before KING, SHEDD, and DAVIS, Circuit Judges.
CULOSI v. BULLOCK 3
Dismissed by published opinion. Judge Davis wrote the opin-
ion, in which Judge King and Judge Shedd concurred.
COUNSEL
ARGUED: David John Fudala, SUROVELL, MARKLE,
ISAACS & LEVY, Fairfax, Virginia, for Deval Bullock, Offi-
cer, individually and in his official capacity as Fairfax County
Police Officer. Michael S. Lieberman, DIMUROGINSBERG,
PC, Alexandria, Virginia, for Salvatore J. Culosi, personally
and as personal representative and administrator of the estate
of Dr. Salvatore J. Culosi, deceased, and Anita L. Culosi, per-
sonally and as personal representative and administrator of the
estate of Dr. Salvatore J. Culosi. Ann Gouldin Killalea,
COUNTY ATTORNEY’S OFFICE, Fairfax, Virginia, for
Fairfax County, Virginia, James Kellam, individually and in
his official capacity, and David M. Rohrer, Colonel, in his
official capacity as Chief of Police. ON BRIEF: Bernard J.
DiMuro, DIMUROGINSBERG, PC, Alexandria, Virginia, for
Salvatore J. Culosi, personally and as personal representative
and administrator of the estate of Dr. Salvatore J. Culosi,
deceased, and Anita L. Culosi, personally and as personal rep-
resentative and administrator of the estate of Dr. Salvatore J.
Culosi. David P. Bobzien, County Attorney, COUNTY
ATTORNEY’S OFFICE, Fairfax, Virginia, for Fairfax
County, Virginia, James Kellam, individually and in his offi-
cial capacity, and David M. Rohrer, Colonel, in his official
capacity as Chief of Police.
OPINION
DAVIS, Circuit Judge:
The underlying claims at issue in these appeals, asserted
pursuant to 42 U.S.C. § 1983 and state law, arise out of the
4 CULOSI v. BULLOCK
fatal shooting of an arrestee by a Fairfax County, Virginia,
police officer. Defendant Deval Bullock, the officer who fired
the fatal shot, noted an interlocutory appeal in No. 09-1042
from the district court’s denial of summary judgment on the
ground of qualified immunity. See Mitchell v. Forsyth, 472
U.S. 511, 530 (1985). Thereafter, pursuant to an order entered
under Fed. R. Civ. P. 54(b), Plaintiffs Salvatore J. and Anita
L. Culosi, individually and as personal representatives of the
estate of the decedent, filed a cross-appeal in No. 09-1104
from the district court’s earlier order granting a Fed. R. Civ.
P. 12(b)(6) motion to dismiss for failure to state a claim upon
which relief could be granted filed by Defendants Fairfax
County, Police Chief David M. Rohrer, and Lt. James Kellam.
For the reasons that follow, we conclude that the order of the
district court denying qualified immunity to Officer Bullock
is not immediately appealable because the district court
merely determined that genuine disputes of material fact
existed—a determination not subject to interlocutory appeal.
See Johnson v. Jones, 515 U.S. 304, 319-20 (1995). More-
over, under the circumstances, we decline to exercise jurisdic-
tion over the Plaintiffs’ cross-appeal pursuant to the Rule
54(b) certification order entered by the district court. Accord-
ingly, we shall dismiss both appeals in their entirety.
I.
In October 2005, the Fairfax County Police Department
("FCPD") began an investigation of Dr. Salvatore J. Culosi,
Jr. ("Dr. Culosi"), a local optometrist, for felony gambling
offenses. Detective David Baucom ("Det. Baucom") of the
FCPD Money Laundering Unit ("the MLU"), acting in an
undercover capacity, had begun to place sports bets with Dr.
Culosi at a sports bar, betting approximately $28,000 over the
course of several months. In January 2006, Det. Baucom and
other members of the MLU decided to arrest Dr. Culosi and
to execute a search warrant at Dr. Culosi’s residence for evi-
dence of his illegal gambling activities.
CULOSI v. BULLOCK 5
The FCPD Tactical Section ("the SWAT team") customar-
ily executed search warrants for the MLU but it was not ordi-
narily involved in effecting routine warrantless felony arrests,
as was planned of Dr. Culosi. In any event, Det. Baucom con-
tacted the SWAT team supervisor, Defendant Lieutenant
James Kellam ("Lt. Kellam"), and requested assistance in the
execution of the search warrant for Dr. Culosi’s home. In the
month before the scheduled raid, Lt. Kellam’s SWAT team
conducted surveillance of Dr. Culosi’s residence and neigh-
borhood. Lt. Kellam determined from the surveillance that
there were no indications of "red flags" signifying any special
dangers in the proposed operation. In due course, the officers
decided to execute the search warrant at Dr. Culosi’s home on
the evening of January 24, 2006. Under the plan the officers
put in place, Det. Baucom would lure Dr. Culosi from his res-
idence to collect $1,500 that Dr. Culosi owed Det. Baucom
from bets on football games, and the SWAT team would
assist in effecting Dr. Culosi’s arrest and conduct the search
of the residence.
On the morning of January 24, 2006, members of the
SWAT team, including Officer Bullock, were involved in
supervising an early morning deer hunt, beginning at 5:00
a.m. and ending later that afternoon. Most of the members
then went home and gathered later in the evening to review
the procedures for the arrest of Dr. Culosi and the search of
his residence. Lt. Kellam assigned Sergeant Sean Scott ("Sgt.
Scott") to supervise the arrest aspect.
Sgt. Scott decided to use a dynamic tactical method known
as a "vehicle takedown" for Dr. Culosi’s arrest. Critical to this
method is the sudden appearance of officers, at least one of
whom would point his firearm directly at the arrestee in order
to control him. Other officers would then go "hands on," i.e.,
take physical custody of the arrestee and place him in hand-
cuffs. Specifically, the plan here called for Det. Baucom,
while wired for audio monitoring by members of the SWAT
team, to drive to Dr. Culosi’s residence, wait in his vehicle for
6 CULOSI v. BULLOCK
Dr. Culosi to leave his house and approach the vehicle, and
then give a verbal arrest signal once Dr. Culosi handed over
the $1,500 gambling payoff. When the arrest signal was
given, Sgt. Scott, accompanied by Officer Bullock, would
drive a van from around the corner. Officer Bullock would
then exit from the van’s front passenger side, announce "po-
lice, don’t move" from a gun ready position, and take Dr.
Culosi into custody.
Sgt. Scott later modified the plan whereby Officer Bullock
would merely "control" Dr. Culosi (by use of his firearm)
while officers from a second vehicle would approach to go
"hands on" with Dr. Culosi. Before the plan was executed,
during or after the pre-arrest briefing, Sgt. Scott received a
phone call requiring him to withdraw. Lt. Kellam assumed
Sgt. Scott’s role in executing Dr. Culosi’s arrest. Officer Lee
Northrop was substituted as the driver of Officer Bullock’s
vehicle.
At approximately 9:00 p.m., Det. Baucom called Dr. Culosi
and arranged to meet outside of Dr. Culosi’s residence, a
townhouse condominium. Half an hour later, Dr. Culosi left
his house in stockinged feet and met Det. Baucom, who was
sitting in his car outside the garage. Dr. Culosi approached the
car on the passenger side through his garage and began a con-
versation about the upcoming Superbowl, while handing Det.
Baucom $1,500. The parties dispute whether Dr. Culosi was
holding a cell phone in his hand during the encounter,
although his cell phone was recovered close to his body after
the shooting. Det. Baucom soon gave the verbal arrest signal.
At the signal, Officer Northrop rapidly approached Det.
Baucom’s vehicle and pulled up immediately behind it. At
that time, Dr. Culosi was still standing next to the passenger-
side door of Det. Baucom’s vehicle. When Officer Northrop’s
vehicle came to rest, Officer Bullock exited from the front
passenger door using his left hand to open the door while
simultaneously unholstering his weapon with his right hand
CULOSI v. BULLOCK 7
and announcing "police." Officer Bullock intended to assume
a two-handed-grip, i.e., a "gun ready" position. As he exe-
cuted this maneuver, his weapon discharged a single round,
striking Dr. Culosi in the heart. Dr. Culosi received emer-
gency treatment at the scene but died of his wound at the hos-
pital shortly after the incident.
Officer Bullock has insisted consistently that the discharge
of his weapon was "accidental," although he has varied some-
what his explanations as to the precise character and happen-
ing of the "accident." In any event, it is undisputed that the
firearm discharged as a direct result of Officer Bullock
squeezing the trigger of his .45 caliber semi-automatic pistol;
the weapon did not fire as a result of a malfunction.
II.
Plaintiffs filed this action on March 20, 2007. By their
amended complaint, they sought damages in eight counts as
follows: Count 1, 42 U.S.C. § 1983 claim against Fairfax
County and Chief Rohrer, based on an alleged custom or pol-
icy regarding the use of excessive force;1 Count 2, 42 U.S.C.
§ 1983 Fourth Amendment excessive force claim against
Officer Bullock; Count 3, 42 U.S.C. § 1983 Fourth Amend-
ment excessive force claim against Lt. Kellam; Count 4, 42
U.S.C. § 1983 due process claim, i.e., denial of access to
courts, against Fairfax County and Chief Rohrer;2 Count 5,
1
The Plaintiffs generally theorized that Fairfax County and Police Chief
Rohrer are liable under § 1983 for maintaining a custom or policy of
excessive force. They further alleged that Rohrer and the County are
responsible for the FCPD’s use of the SWAT team for executing search
warrants, employing advanced tactical methods, and for the practice of
drawing weapons and pointing them at individuals. See Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 690-91 (1978).
2
Apparently, the access-to-courts claim theorized that the police depart-
ment purposefully conducted its investigation of the shooting in such a
manner as to deny to the Plaintiffs accurate, probative evidence of how Dr.
Culosi was killed.
8 CULOSI v. BULLOCK
state law claim against Bullock (assault); Count 6, state law
claim against Bullock (battery); Count 7, state law claim
against Bullock (gross negligence); and Count 8, state law
claim against Lt. Kellam (gross negligence).
By order entered on October 19, 2007, as modified by an
order entered on August 14, 2008, the district court dismissed
with prejudice counts 1, 3, and 8, of the amended complaint,
and without prejudice count 4, and thereby dismissed all
claims against all defendants except Officer Bullock, who
fired the fatal shot. After the completion of discovery, Officer
Bullock moved for summary judgment, invoking qualified
immunity as to the § 1983 excessive force claim, and con-
tending that he was entitled to judgment as a matter of law on
the remaining state law claims. After holding a hearing, the
district court entered an order on December 5, 2008, reciting
that "for the reasons stated in open court," Officer Bullock’s
motion for summary judgment was denied.
Thereafter, the Plaintiffs moved the district court to certify
the earlier dismissal of the claims against defendants other
than Officer Bullock as a final appealable judgment pursuant
to Fed. R. Civ. P. 54(b). Defendants did not oppose that
motion and the court entered a certification order on January
2, 2009. Officer Bullock and the Plaintiffs filed timely notices
of appeal on January 5, 2009, and January 16, 2009, respec-
tively.
III.
We examine first the interlocutory appeal brought by Offi-
cer Bullock. On appeal, the parties agree (and the district
court clearly recognized) that the viability of the Plaintiffs’
Fourth Amendment excessive force claim generally, and
application of the qualified immunity defense to Officer Bul-
lock, specifically, turns on this question: was the shooting
death of Dr. Culosi the result, on the one hand, of an inten-
tional act by Officer Bullock, or, on the other hand, was it the
CULOSI v. BULLOCK 9
result of a tragic and deeply regrettable, unintentional, acci-
dental, discharge of Officer Bullock’s firearm?
Of course, this framing of the issue is quite correct. A
Fourth Amendment seizure occurs "only when there is a gov-
ernmental termination of freedom of movement through
means intentionally applied." Brower v. County of Inyo, 489
U.S. 593, 597 (1989)(emphasis in original). The Supreme
Court has held that shooting a fleeing suspect is a Fourth
Amendment seizure. Tennessee v. Garner, 471 U.S. 1, 7
(1985). A claim of excessive force is analyzed under the
Fourth Amendment standard of objective reasonableness.
Graham v. Connor, 490 U.S. 386, 395 (1989); Scott v. Harris,
550 U.S. 372, 381 (2007). A police officer may use deadly
force "when the officer has sound reason to believe that a sus-
pect poses a threat of serious physical harm to the officer or
others." Elliot v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996).
Reasonableness is determined by the information possessed
by the officer at the moment the force is employed. Waterman
v. Batton, 393 F.3d 471, 477 (4th Cir. 2005). A mistaken use
of deadly force, however, is not necessarily a constitutional
violation under the Fourth Amendment: "a mistaken under-
standing of facts that is reasonable in the circumstances can
render a seizure reasonable under the Fourth Amendment."
Milstead v. Kibler, 243 F.3d 157, 165 (4th Cir. 2001); see also
Maryland v. Garrison, 480 U.S. 79, 87 (1987) ("[T]he Court
has recognized the need to allow some latitude for honest mis-
takes that are made by officers in the dangerous and difficult
process of making arrests and executing search warrants.");
Henry v. Purnell, 501 F.3d 374, 382 (4th Cir. 2007) (recog-
nizing that shooting the decedent with a handgun when think-
ing it was a taser gun could be a reasonable mistake).
Before us, Officer Bullock vigorously contends that the dis-
trict court erred in denying his motion for summary judgment
because, as a matter of law, the death of Dr. Culosi was acci-
dental, and therefore, the circumstances surrounding his death
cannot support a Fourth Amendment excessive force claim at
10 CULOSI v. BULLOCK
all. Furthermore, he contends, that conclusion entitles him to
qualified immunity.3
Whether we agree or disagree with the district court’s
assessment of the record evidence on that issue, however, is
of no moment in the context of this interlocutory appeal. This
conclusion is required because the Supreme Court and this
court have made clear "that a defendant, entitled to invoke a
qualified immunity defense, may not appeal a district court’s
summary judgment order insofar as that order determines
whether or not the pretrial record sets forth a ‘genuine’ issue
of fact for trial." Johnson, 515 U.S. at 319-20. "In other
words, we possess no jurisdiction over a claim that a plaintiff
has not presented enough evidence to prove that the plaintiff’s
version of the facts actually occurred, but we have jurisdiction
over a claim that there was no violation of clearly established
law accepting the facts as the district court viewed them."
Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en banc).
In denying Officer Bullock’s motion for summary judg-
ment, the district court plainly, even if only implicitly, acted
on the basis that there existed in this case genuine disputes of
material fact and that the resolution of such disputes at trial
was necessary before the legal issue of Officer Bullock’s enti-
tlement to qualified immunity could be determined. Although
the court did not memorialize its ruling in a memorandum
opinion, its comments "in open court" leave little doubt as to
3
The inquiry into qualified immunity starts with a threshold question:
taken in the light most favorable to the party asserting the injury, do the
facts alleged show the officer’s conduct violated a constitutional right?
Saucier v. Katz, 544 U.S. 194, 201 (2001). If the court finds there is no
violation of a constitutional right, the inquiry ends there and the officer is
entitled to summary judgment. If a potential violation is shown, the next
step is to ask whether the right was clearly established. Id. Qualified
immunity is abrogated only when the right that the officer is alleged to
have violated was a "clearly established" right at the time of the violation.
Id. at 202. The Supreme Court has recently freed us to consider these
issues in any sequence. Pearson v. Callahan, 129 S.Ct. 808, 818 (2009).
CULOSI v. BULLOCK 11
its reasoning: "It’s a very close case . . . Credibility of the wit-
nesses is clearly an issue that runs through this, and quite
frankly, this case will to a significant degree rely upon the
credibility of Officer Bullock." J.A. 195.4 Thus, it is clear that
the district court found that whether the death of Dr. Culosi
was the result of intentional force willfully applied by Officer
Bullock, or an accident, was a factual issue for the jury at trial.5
4
The record shows that Officer Bullock gave numerous formal accounts
of the incident, including: (1) a statement on the night of the shooting, (2)
a statement within days thereafter, (3) statements during internal affairs
interviews and disciplinary proceedings conducted by the police depart-
ment, as well as (4) by deposition in this case. Understandably, perhaps,
not all of his accounts are entirely consistent with each other, nor entirely
consistent with accounts given by several witnesses who were present at
the time of the shooting.
5
To be sure, the district court expressed deep skepticism as to whether
any one or more of the Plaintiffs’ myriad "theories" would be found per-
suasive by a jury. J.A. 185-86 ("I don’t see how this case can go forward
on this record."). Seemingly, the two theories most pressed on appeal by
the Plaintiffs are that Bullock acted intentionally "because he overreacted
to observing a cell phone in Culosi’s hand, or . . . due to fatigue and anxi-
ety [in consequence of his participation in the early-morning deer hunt],
Bullock unreasonably reacted to some subjective belief that Culosi was
about to run into his house." See Reply Br. at 4.
In any event, as the district court ultimately (if only impliedly) con-
cluded, the Plaintiffs have generated genuine disputes of material, histori-
cal fact in reliance on: (1) eyewitness accounts from officers who were
present at the time of and immediately after the shooting who arguably
contradict Officer Bullock on some points; (2) expert opinion evidence,
including reenactment evidence, which Officer Bullock never sought to
have formally excluded from consideration by the district court; (3) foren-
sic evidence gathered from and derived from the scene of the shooting
(including the presence of the Dr. Culosi’s cell phone); and (4) a series of
internal inconsistencies in Officer Bullock’s own accounts, of which there
are more than four, as to how the shooting occurred. Whether or not we
would agree with the district court’s evaluation of the record evidence
relied on by the Plaintiffs, we have no hesitation in concluding that this
array of evidence is what undergirds the district court’s implied conclusion
that there existed genuine disputes of material fact that bear on and sup-
port the Plaintiffs’ alternative explanations of whether the shooting was
accidental or intentional. And, as the district court stated, "this case will
to a significant degree rely upon the credibility of Officer Bullock." J.A.
195.
12 CULOSI v. BULLOCK
In his appellate briefs Officer Bullock does not cite or dis-
cuss Johnson or Winfield or their progeny, see, e.g., Iko v.
Shreve, 535 F.3d 225 (4th Cir. 2008); nevertheless, he ear-
nestly disclaims reliance on any alleged insufficiency of the
Plaintiffs’ evidentiary showing that the discharge of his
weapon was other than accidental. See Reply Br. at 3. We
find, however, his argument that the shooting was accidental
as a matter of law is precisely that: an argument based on
insufficient record evidence to prove the contrary, and thus
one not open to consideration to us on interlocutory appeal.
Id.
As mentioned above, Officer Bullock agrees, in effect, that
if a fact finder found by a preponderance of the evidence that
he intentionally and willfully shot Dr. Culosi, a constitutional
violation would be established. See Garner, 471 U.S. at 8.
Thus, unless the district court was satisfied that a genuine dis-
pute of material fact on that issue was presented, it would
have granted Officer Bullock’s motion for summary judg-
ment. In other words, it is only because the district court,
drawing inferences in favor of the Plaintiffs, discerned that
Plaintiffs had accumulated sufficient proof of an intentional
shooting, i.e., "the illegality of the seizure," see Figg v.
Schroeder, 312 F.3d 625, 642 (4th Cir. 2002), that the court
denied his motion.6 Accordingly, we lack jurisdiction to con-
sider Officer Bullock’s interlocutory appeal. See Iko, 535 F.3d
at 237 ("Because the district court denied, by virtue of con-
flicting factual inferences, summary judgment on the claim
that the application of pressure to Iko constituted excessive
force, there is no legal issue on appeal on which we could
6
This is not a case in which the legal effect of a collection of undisputed
facts points to divergent outcomes, one constitutional and the other not.
Rather, this is a case, as the district court recognized, in which the version
of facts ultimately accepted by the fact finder will dictate the outcome of
the constitutional inquiry. Of course, our conclusion, compelled by John-
son, that we lack jurisdiction to review the sufficiency of the evidence in
this interlocutory appeal will have no bearing on any post-trial review of
the sufficiency of the evidence should the need to do so arise.
CULOSI v. BULLOCK 13
base jurisdiction. Therefore, this aspect of the officers’ appeal
must be dismissed.").7
IV.
We now turn to the cross-appeal. The Plaintiffs’ cross-
appeal from the district court’s dismissal of all claims against
all defendants other than Officer Bullock was authorized by
the district court, at their request, pursuant to Fed. R. Civ. P.
54(b). Under that rule, a district court "may direct the entry
of a final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that
there is no just reason for delay and upon an express direction
for the entry of judgment." Fed. R. Civ. P. 54(b).
We have recognized that "[w]e can only reverse a district
court’s Rule 54(b) certification if we determine that the dis-
trict court has abused its discretion." Fox v. Baltimore Police
Dep’t, 201 F.3d 526, 531 (4th Cir. 2000). Although we nor-
mally "defer to the district court’s initial determination that a
judgment is final and no just reason exists for delay[,] [w]e
must necessarily accord the district court less deference . . .
when . . . the court offers no rationale for its decision to cer-
tify." Id. (citing Braswell Shipyards, Inc. v. Beazer East, Inc.,
2 F.3d 1331, 1336 (4th Cir. 1993)(recognizing that "numerous
courts have held that where the district court’s Rule 54(b) cer-
tification is devoid of findings or reasoning in support thereof,
the deference normally accorded such a certification is nulli-
fied")). Here, the district court failed to specify any reasons
for certifying the appeal as requested by the Plaintiffs, and we
can discern scant reason for us to accept jurisdiction. Most
likely, however, the court acted on the possibility that we
might reverse the denial of qualified immunity to Officer Bul-
7
Our dismissal of Plaintiffs’ cross-appeal, see infra Part IV, makes it
unnecessary for us to address Officer Bullock’s contention that we should
exercise pendent appellate jurisdiction over the district court’s denial of
his motion for summary judgment as to the state law claims.
14 CULOSI v. BULLOCK
lock, and that certification under Rule 54(b) might then make
good sense, insofar as the Plaintiffs would be free to seek ple-
nary review of all claims in the case upon one appeal. Such
reasoning, however, would constitute an abuse of discretion
because it rests on a misapprehension of the law — the mis-
taken notion that we would possess jurisdiction over Officer
Bullock’s interlocutory appeal. Our dismissal of Officer Bul-
lock’s interlocutory appeal plainly undercuts this basis for the
Rule 54(b) certification.
Moreover, as to the Defendants other than Officer Bullock,
who are the Appellees in the cross-appeal, the orders of the
district court left open the possibility that the Plaintiffs might
reinstate their denial-of-access-to-the-courts claim, count 4 of
the amended complaint. Thus, although the district court’s
orders nominally dismissed count 4 of the amended com-
plaint, because the dismissal was without prejudice, the Plain-
tiffs have the unfettered right to refile their § 1983 due
process claim. Describing that claim as "premature," it
appears that the district court has never definitively consid-
ered the legal sufficiency of the claim at all. It would be
anomalous, to say the least, for us to review such a dismissal
pursuant to Fed. R. Civ. P. 54(b).8
V.
For the foregoing reasons, the appeals in this case are
DISMISSED.
8
Indeed, the Plaintiffs-Cross Appellants make no argument as to the
access-to-courts claim in their opening brief on appeal. This is unsurpris-
ing inasmuch as they persuaded the district court to modify the dismissal
of that claim to a dismissal without prejudice.