Fontenot v. McLeod

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 28, 1995
• Docket: 95-40540
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-40540 USDC No. 1:93-CV-626 __________________

IRA FONTENOT,

Plaintiff-Appellant,

versus

RANDY MCLEOD, Warden, Mark Stiles Unit, REED SMITH, WILBURN GORE, Major, Mark Stiles Unit, JODY HATCH, First shift sgt, RICKEY D. TARVER, Captain on first shift, ROGER NALLS, Sgt first, LESLEY WAGES, Disciplinary Captain, KEVIN SWIFT, Officer, STEPHEN LAWRENCE, MARTIN MCDANNEL, Lt first shift,

Defendants-Appellees.

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Appeal from the United States District Court for the Eastern District of Texas

--------------------- December 11, 1995

Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

This court must examine the basis of its jurisdiction on its

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

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-40540 -2-

Cir. 1987). Ira Fontenot filed a motion to dismiss voluntarily

the claims against all of the defendants except Leslie Wages,

Stephen Lawrence, and Kevin Swift. See Fed. R. Civ. P. 41(a)(1).

The magistrate judge recommended that the district court grant

Fontenot's motion and enter a partial final judgment.

Rule 54(b), Fed. R. Civ. P., provides that "[w]hen more than

one claim for relief is presented in an action, . . . or when

multiple parties are involved, the 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." The district court dismissed the claims

against Wages, Lawrence, and Swift; however, there is no

indication in the record that the district court granted the Rule

41 motion and entered a partial final judgment as to the

remaining defendants. Because there are claims against numerous

parties for which a final judgment has not been entered, the

appeal must be dismissed. See Borne v. A & P Boat Rentals No. 4,

Inc., 755 F.2d 1131, 1133 (5th Cir. 1985); Thompson v. Betts, 754

F.2d 1243, 1245 (5th Cir. 1985).

APPEAL DISMISSED.