Gates v. Cook

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 18, 2003

Charles R. Fulbruge III No. 02-60879 Clerk Summary Calendar

NAZARETH GATES ETC.; ET AL.,

Plaintiffs,

versus

THOMAS D. COOK ETC.; ET AL.,

Defendants.

-----------------------------

JAY BOLER,

Plaintiff-Appellant,

RONNIE MUSGROVE ETC.; ET AL.,

Defendants,

RONNIE MUSGROVE, Governor; ROBERT L. JOHNSON, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS; RONALD R. WELCH, Attorney at Law, Class Counsel; KIRK FORDICE, Ex-Governor of the State of Mississippi; JAMES V. ANDERSON, Ex-Commissioner of Mississippi Department of Corrections; CHRISTOPHER EPPS, Deputy Commissioner of Mississippi Department of Corrections; LEONARD VINCENT, General Counsel, Staff Attorney, Mississippi Department of Corrections,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:71-CV-6-JAD USDC No. 4:01-CV-281-JAD USDC No. 4:01-CV-299-JAD -------------------- Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

Jay Boler, Mississippi prisoner # 34750, appeals the district

court’s resolution of his 42 U.S.C. § 1983 action against various

Mississippi officials in which he challenged the conditions of

confinement at the Mississippi State Penitentiary at Parchman. He

asserts that the district court erred in dismissing his challenges

to the prison conditions. The district court did not rule on the

merits of Boler’s conditions claims; the case was consolidated with

Gates v. Collier, No. 4:71CV6-JAD.

Boler contends that the district court abused its discretion

in consolidating his case with the Gates action and in denying his

request to consolidate his case with that of Derrick Solomon

Pruitt, Mississippi prisoner # 46846. Orders consolidating cases

are interlocutory and are not immediately appealable. In re Macon

Uplands Venture, 624 F.2d 26, 27 (5th Cir. 1980); see 28 U.S.C. §

1292(a).

Boler also challenges the district court’s dismissal of his

claims against various defendants in their official or supervisory

capacities. As the merits of the case are ongoing, the dismissal

of these defendants is not a final judgment. 28 U.S.C. § 1291; Van

Cauwenberghe v. Biard, 486 U.S. 517, 521-22 (1988). Further,

because the district court did not make an “express determination

1 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. that there is no just reason for delay,” the decision of the court

has not been certified pursuant to FED. R. CIV. P. 54(b). See

Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc.,

170 F.3d 536, 538-39 (5th Cir. 1999).

Boler maintains that he should receive attorney fees as a

“prevailing party” because his lawsuit was a “catalyst” for prison

changes. Boler did not move in the district court for attorney’s

fees, and his argument cannot be construed as a motion in this

court for attorney’s fees, as the applicable statutory authority,

42 U.S.C. § 1988(b), applies specifically to proceedings in the

district court. See § 1988(a).

Boler has not briefed any claim that is properly appealable to

this court at this time. See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983). His appeal is frivolous and is therefore

DISMISSED.