Malone v. Dauzat

Fifth Circuit

Malone v. Dauzat

209 F. App'x 409

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 12, 2006

Docket06-30241

StatusUnpublished

This text of 209 F. App'x 409 (Malone v. Dauzat) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Malone v. Dauzat, 209 F. App'x 409 (5th Cir. 2006).

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Opinion

PER CURIAM: *

William Malone, federal prisoner # 23100-009, appeals from a judgment dismissing his Bivens ** excessive force claims and his constitutionally inadequate medical care claims against only certain of the named defendants. Malone argues that the district court erred in not effecting service of process on the defendants who remained in the litigation and against whom he stated an excessive force claim.

This court may hear appeals only from “final decisions” under 28 U.S.C. § 1291, *410 interlocutory decisions under 28 U.S.C. § 1292, nonfinal judgments certified as final under Fed.R.Civ.P. 54(b), or some other nonfinal order or judgment to which an exception applies. Clark v. Johnson, 278 F.3d 459, 460 (5th Cir.2002). Jurisdiction over Malone’s appeal does not lie under § 1291 because the district court’s judgment did not end the litigation on the merits against all parties. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373-74, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). Because the district court’s dismissal of Malone’s unexhausted claims and excessive force claims against only certain of the defendants is not “effectively unreviewable” on appeal, jurisdiction also does not lie under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Finally, jurisdiction does not lie under § 1292, see § 1292(a), and the district court did not certify the judgment as final under Fed.R.Civ.P. 54(b); therefore, jurisdiction also cannot rest on that basis. See Clark, 278 F.3d at 460. We therefore lack jurisdiction to entertain Malone’s appeal.

APPEAL DISMISSED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

**

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971).

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PER CURIAM: *

William Malone, federal prisoner # 23100-009, appeals from a judgment dismissing his Bivens ** excessive force claims and his constitutionally inadequate medical care claims against only certain of the named defendants. Malone argues that the district court erred in not effecting service of process on the defendants who remained in the litigation and against whom he stated an excessive force claim.

This court may hear appeals only from “final decisions” under 28 U.S.C. § 1291, *410 interlocutory decisions under 28 U.S.C. § 1292, nonfinal judgments certified as final under Fed.R.Civ.P. 54(b), or some other nonfinal order or judgment to which an exception applies. Clark v. Johnson, 278 F.3d 459, 460 (5th Cir.2002). Jurisdiction over Malone’s appeal does not lie under § 1291 because the district court’s judgment did not end the litigation on the merits against all parties. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373-74, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). Because the district court’s dismissal of Malone’s unexhausted claims and excessive force claims against only certain of the defendants is not “effectively unreviewable” on appeal, jurisdiction also does not lie under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Finally, jurisdiction does not lie under § 1292, see § 1292(a), and the district court did not certify the judgment as final under Fed.R.Civ.P. 54(b); therefore, jurisdiction also cannot rest on that basis. See Clark, 278 F.3d at 460. We therefore lack jurisdiction to entertain Malone’s appeal.

APPEAL DISMISSED.

*

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.

**

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971).

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