Oloson v. Louviere

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 26, 2000
• Docket: 99-31157
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-31157 Summary Calendar

DAVISON OLOSON,

Plaintiff-Appellant,

versus

TODD LOUVIERE, Individually & in his official capacity as Warden St. Martin Parish Correctional Center; EDDY ROMERO, Individually & in his official capacity as ex Warden St. Martin Parish Correctional Center; JEMIS CONNAR, Individually & in his official capacity as deputy St. Martin Parish Correctional Center; GLEN BEIAVINEW, also known as Rambo Beiavinew, Individually & in his official capacity as deputy St. Martin Parish Correctional Center; IRBY LIVINGSTON, Individually & in his official capacity as deputy St. Martin Parish Correctional Center; LUGY ALEXANDER, Individually & in his official capacity as deputy St. Martin Parish Correctional Center; JEFF RUSSO, Individually & in his official capacity as deputy St. Martin Parish Correctional Center; DEIVON BALTOZOR, Individually & in his official capacity as deputy St. Martin Parish Correctional Center; TEDDY AUVAL, Individually & in his official capacity as deputy St. Martin Parish Correctional Center; SHELIA LANDRY, Individually & in her official capacity as deputy St. Martin Parish Correctional Center; CHARLES A. FUSELIER; STEPHEN MEANARD; PAUL ROCHIN; BUTCH DUPOIS; EVANS WILLIAMS; MARC GUIRDY; SAMMY INSERELLA; JOHN DOE KERVIN; PARISH OF ST. MARTIN,

Defendants-Appellees.

-------------------------------- - Appeal from the United States District Court for the Western District of Louisiana USDC No. 96-CV-2462 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - December 21, 2000

Before EMILIO M. GARZA., STEWART, and PARKER: Circuit Judges. PER CURIAM:*

Before the court is the motion filed by the appellees to dismiss the appeal filed by Louisiana

prisoner Davison Oloson for lack of jurisdiction. We have reviewed the record and the briefs of the

parties on the issue and GRANT the appellees motion to dismiss. The district court’s certification

of its partial judgment as appealable pursuant to 28 U.S.C. § 1292(b) must be followed by an

application in this court for permission to appeal the nonfinal judgment within ten days of the district

court’s § 1292(b) certification. See § 1292(b); Fed. R. App. P. 5(a); Aparicio v. Swan Lake, 643

F.2d 1109, 1111 (5th Cir. 1981). “Failure to file an application for permission to appeal from an

interlocutory order . . . within the ten-day period prescribed by 28 U.S.C. § 1292(b) and Rule 5(a),

Fed. R. App. P., is a jurisdictional defect that deprives the appellate court of power to entertain the

appeal.” Aparicio, 643 F.2d at 1111.

Because Oloson failed to file an appeal following the district court’s § 1292(b) certification,

this court is without jurisdiction over this interlocutory appeal. See id. The appellees’ motion is

GRANTED and this appeal is DISMISSED for lack of jurisdiction. Oloson can request that the

district court reenter the order as certified; a new ten-day period is triggered by such reentry. See

id. at 1111-12.

MOTION GRANTED; 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.