David Evans v. Ruth Brouwer , 668 F. App'x 76 ( 2016 )

Case: 15-40372 Document: 00513631492 Page: 1 Date Filed: 08/10/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-40372
Fifth Circuit
FILED
Summary Calendar August 10, 2016
Lyle W. Cayce
DAVID W. EVANS, Clerk
Plaintiff-Appellant
v.
JEREMY ZWAR,
Defendant-Appellee
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 9:13-CV-302
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
David W. Evans, Texas prisoner # 1246749, appeals from both the partial
judgment dismissing his 42 U.S.C. § 1983 claims against defendant Jeremy
Zwar and from the order denying his motion for a temporary restraining order
(TRO) and preliminary injunction.
“This Court must examine the basis of its jurisdiction, on its own motion,
if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). We lack
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-40372 Document: 00513631492 Page: 2 Date Filed: 08/10/2016
No. 15-40372
jurisdiction to consider Evans’s appeal from the partial judgment, which
adjudicated fewer than all of his claims, because the partial judgment does not
indicate that the district court intended to enter a final judgment. See FED.
R. CIV. P. 54(b); Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enter., Inc.,
170 F.3d 536, 538-41 (5th Cir. 1999); Kelly v. Lee’s Old Fashioned Hamburgers,
Inc., 908 F.2d 1218, 1220 (5th Cir. 1990) (en banc). Likewise, we lack
jurisdiction to consider Evans’s appeal from the denial of a TRO. See Faulder
v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999); Matter of Lieb, 915 F.2d 180, 183
(5th Cir. 1990).
We have jurisdiction to consider Evans’s appeal from the denial of a
preliminary injunction. See 28 U.S.C. § 1292(a)(1); Cardoni v. Prosperity Bank,
805 F.3d 573, 579 (5th Cir. 2015). A party seeking a preliminary injunction
must establish, inter alia, “a substantial likelihood of success on the merits
[and] a substantial threat of irreparable injury if the injunction is not issued.”
Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009) (citation omitted). As
Evans does not even address whether he made such a showing in the district
court, he fails to show that the district court abused its discretion by denying
the preliminary injunction. See PCI Transp., Inc. v. Fort Worth & W. R.R. Co.,
418 F.3d 535, 545 (5th Cir. 2005).
We DISMISS for lack of jurisdiction Evans’s appeal of the partial
judgment, we DISMISS IN PART for lack of jurisdiction and AFFIRM IN
PART the order denying a TRO and a preliminary injunction, and we DENY
Evans’s motion for review of judgment and an evidentiary hearing.
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