Deveaux v. Louviere

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 6, 2002
• Docket: 01-30353
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30353 Summary Calendar

ANTHONY DEVEAUX,

Plaintiff-Appellant,

versus

TODD LOUVIERE; ET AL.,

Defendants,

TODD LOUVIERE; CHARLES A. FUSELIER; K. BABERS, Deputy; CHAD BENOIT, Deputy; DAVID DELAUNEY, Corporal; PICARD, Corporal; RAYMOND CALAIS; HEBERT, Deputy; LEGRAND, Deputy; QUERY, Nurse; LARRY LANDRY; LOUIS LANDRY; DENNIS LEBLANC, Lieutenant; WORTHY QUEREAU; ALLEMOND, Lieutenant; BIENVENU, Sergeant,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 00-CV-387 -------------------- September 5, 2002

Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.

PER CURIAM:*

Anthony Deveaux, INS detainee # A73-784-337, appeals the

summary judgment in favor of the defendants in his 42 U.S.C.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-30353 -2-

§ 1983 action regarding allegations of excessive force,

unconstitutional conditions of confinement, and denials of due

process in disciplinary proceedings.

This court must examine the basis of its jurisdiction on its

own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th

Cir. 1987). An examination of the record in this case discloses

that no final judgment has been entered as a separate document as

required by FED. R. CIV. P. 58.

In an order entered on March 19, 2001, the district court

granted summary judgment in favor of the majority of the

defendants. After Deveaux had filed his notice of appeal,

defendants Michael Washington and Milton Joseph filed answers and

motions for relief. The district court granted Washington’s

motion for summary judgment and Joseph’s motion to dismiss for

failure to prosecute. Deveaux’s appellate brief, which was filed

before entry of these orders, raises specific allegations against

Joseph, but does not respond to the district court’s orders. We

therefore decline to treat the March 19 order as a Rule 58

judgment; Deveaux would arguably be prejudiced because he did not

have the opportunity to address the later orders entered by the

district court. See Baker v. Mercedes Benz of N. Am., 114 F.3d

57, 60-61 (5th Cir. 1997)(addressing an untimely notice of

appeal). Therefore, we DISMISS, as premature, this appeal for

lack of entry of a final, appealable judgment. See Townsend v.

Lucas, 745 F.2d 933, 934 (5th Cir. 1984). No. 01-30353 -3-

Deveaux may rectify the lack of a separate document judgment

by a motion to the district court for entry of judgment. After

entry of the judgment, he may appeal within the time prescribed

by FED. R. CIV. P. 4(a)(1)(A).

Deveaux has also filed a motion requesting that the

defendants be ordered to submit his reply brief or to show cause

why Deveaux cannot mail his reply brief. This motion is DENIED

AS MOOT.

APPEAL DISMISSED; MOTION DENIED AS MOOT.