Greenough v. Gray ( 2023 )

Case: 22-40190 Document: 00516763569 Page: 1 Date Filed: 05/25/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 25, 2023
No. 22-40190
Lyle W. Cayce
____________
Clerk
Randall T. Greenough,
Plaintiff—Appellant,
versus
Sharilla Gray,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:21-CV-75
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Our prior panel opinion, Greenough v. Gray, No. 22-40190, 2023 WL
2573923 (5th Cir. Mar. 30, 2023), is WITHDRAWN. The following
opinion is SUBSTITUTED:
Randall T. Greenough, an inmate confined at the Polunsky Unit of the
Texas Department of Criminal Justice, Correctional Institutions Division,
appeals the district court’s denial of his motion for default judgment.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40190 Document: 00516763569 Page: 2 Date Filed: 05/25/2023
No. 22-40190
It is not clear that the district court’s order denying default judgment
is appealable at this time because it is not clear that Greenough’s case has
progressed to final judgment. See Adult Film Ass’n of America, Inc. v.
Thetford, 776 F.2d 113, 115 (5th Cir. 1985) (holding that orders denying
default judgment are not subject to interlocutory appeal). While the district
court issued an order adopting the magistrate judge’s report and
recommendation dismissing Greenough’s claims on March 23, 2022, the
magistrate judge extended Greenough’s time to file objections to the report
and recommendation on March 25, 2022, explaining that “the plaintiff did
not have an opportunity to file objections” due to mailing delays. Those
objections have now been filed, and the district court has not ruled on them.
Because it is not clear, from the record, whether Greenough’s case
remains pending, we remand to the district court to clarify whether a final
judgment has been issued. Upon doing that, the district court shall return
the case to this court for further proceedings, or dismissal, as may be
appropriate.
LIMITED REMAND.
2