Ward v. LeClaire

• Court: Court of Appeals for the Second Circuit
• Decided: June 28, 2011
• Docket: 10-1519
• Status: Unpublished

Opinion

10-1519-pr Ward v. LeClaire

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 28th day of June, two thousand eleven. 5 6 PRESENT: RICHARD C. WESLEY, 7 DEBRA ANN LIVINGSTON, 8 GERARD E. LYNCH, 9 Circuit Judges. 10 11 12 13 KENNETH WARD, 14 15 Plaintiff-Appellant, 16 17 -v.- 10-1519-pr 18 19 LUCIEN LECLAIRE, JR., Acting Commissioner, THOMAS G. EAGEN, 20 Director of Central Office Review Committee, LAWRENCE SEARS, 21 Superintendent, Franklin Correctional Facility, J.D. DEMARS, 22 Deputy Superintendent of Programs, R. BOYEA, IGP Supervisor, 23 GLENN GOORD, DOCS Commissioner, M. DUTIL, Correctional 24 Officer, BRIAN FISCHER, Commissioner, K. HABECK, Deputy 25 Superintendent of Administration, T. DUMAS, Registered Nurse, 26 D.A. ROCK, Deputy Superintendent of Security, 27 28 Defendants-Appellees, 29 30 RICHARD SAVAGE, Superintendent, Gowanda Correctional Facility, 31 J. MELENDEZ, Deputy Superintendent of Programs, LINDA JANISH, 32 BOYCE, R. MAHONEY, Deputy Superintendent of Administration, 33 WALDMILLER, Correctional Officer, RIGGTIONE, Correctional 1 Officer, HESSEL, Correctional Officer, 2 3 Defendants. 4 5 6 7 8 FOR APPELLANT: Kenneth Ward, pro se, Rochester, NY. 9 10 FOR APPELLEE: Kate H. Nepveu, Assistant Solicitor 11 General (Barbara D. Underwood, Solicitor 12 General, Andrea Oser, Deputy Solicitor 13 General, on the brief,), for Eric T. 14 Schneiderman, Attorney General of the 15 State of New York, Albany, NY. 16 17 Appeal from an order of the United States District 18 Court for the Northern District of New York (Suddaby, J.). 19 20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

21 AND DECREED that the appeal is DISMISSED.

22 Plaintiff-appellant Kenneth Ward, pro se, appeals from

23 an order of the United States District Court for the

24 Northern District of New York (Suddaby, J.), which denied

25 defendants’ motion for summary judgment with regard to

26 Ward’s Eighth Amendment conditions-of-confinement claim

27 against defendant Dutil, but granted defendants’ motion for

28 summary judgment with regard to all of Ward’s other claims.

29 We assume the parties’ familiarity with the underlying

30 facts, the procedural history, and the issues presented for

31 review.

2 1 Upon review, we have determined that we lack appellate

2 jurisdiction over Ward’s appeal. An order granting partial

3 summary judgment like the one Ward challenges in this appeal

4 is not a final order for purposes of 28 U.S.C. § 1291. See

5 Petrello v. White, 533 F.3d 110, 113-14 (2d Cir. 2008);

6 Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485,

7 494-95 (2d Cir. 2004). Nor did the district court expressly

8 enter a partial final judgment for any of the dismissed

9 claims or parties pursuant to Rule 54(b) of the Federal

10 Rules of Civil Procedure. See Petrello, 533 F.3d at 113.

11 Moreover, no other basis for appellate jurisdiction has been

12 demonstrated. See 28 U.S.C. § 1292(a), (b); see also

13 Whiting v. Lacara, 187 F.3d 317, 319–20 (2d Cir. 1999).

14 For the foregoing reasons, the appeal is hereby

15 DISMISSED for lack of appellate jurisdiction.

16 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20