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 2003-06

Gates v. Cook ( 2003 )


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  •                                                       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,
versus
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.