Ledbetter v. Relig Pract Cmte ( 2023 )

Case: 23-10612 Document: 00516932935 Page: 1 Date Filed: 10/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 16, 2023
No. 23-10612
Summary Calendar Lyle W. Cayce
Clerk
____________
Kenric Ledbetter, Individually and on behalf of all others similarly
situated; Isaac Cardenas, Individually and on behalf of all others
similarly situated; Santhy Inthalangsy, Individually and on behalf of
all others similarly situated; David Martin, Individually and on behalf of
all others similarly situated, also known as Etsuzen; Miguel
Bygoytia, Individually and on behalf of all others similarly situated;
James Renfro, Individually and on behalf of all others similarly situated;
Justin Panus, Individually and on behalf of all others similarly situated;
Richard Cross, Individually and on behalf of all others similarly situated;
William Oliver, Individually and on behalf of all others similarly
situated,
Plaintiffs—Appellants,
versus
Religious Practice Committee, Individually and in his or her
official capacity; Timothy Jones, TDCJ Director of Chaplaincy,
Individually and in his or her official capacity; Thomas Brouwer, TDCJ
Assistant Director of Chaplaincy, Individually and in his or her official capacity;
C. F. Hazelwood, TDCJ Director of Religious Service, Individually and
in his or her official capacity; Christopher Carter, TDCJ Director of
Rehabilitation Program Division, Individually and in his or her official capacity,
Defendants—Appellees.
Case: 23-10612 Document: 00516932935 Page: 2 Date Filed: 10/16/2023
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:22-CV-191
______________________________
Before Wiener, Stewart, and Douglas, Circuit Judges.
Per Curiam: *
Ten inmates at the French Robertson Unit of the Texas Department
of Criminal Justice filed an action in the United States District Court for the
Southern District of Texas complaining of violations of 42 U.S.C. §§ 1983,
2000cc. Because only one plaintiff had paid the filing fee, the court ordered
each remaining plaintiff to pay the fee or to submit an application for leave to
proceed in forma pauperis (“IFP”). The plaintiffs objected and moved for
reconsideration, which was denied. After the case was transferred to the
appropriate venue—the Northern District of Texas—the plaintiffs were
permitted to file an out-of-time notice of appeal from the filing fee order and
from the order denying their motion for reconsideration.
“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
may hear appeals only from: (1) “final decisions under 28 U.S.C. § 1291”;
(2) “interlocutory decisions under 28 U.S.C. § 1292”; (3) “nonfinal
judgments certified as final”; or (4) “some other nonfinal order or judgment
to which an exception applies.” Briargrove Shopping Ctr. Joint Venture v.
Pilgrim Enters., Inc., 170 F.3d 536, 538 (5th Cir. 1999) (internal quotation
marks and citations omitted).
Here, the appellants have not applied for IFP status in the district
court or in this court, and there has been no final decision in this case. See
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Case: 23-10612 Document: 00516932935 Page: 3 Date Filed: 10/16/2023
No. 23-10612
§ 1291. The appellants’ failure to comply with the orders by paying the fee or
by moving for leave to proceed IFP could result in dismissal of their claims
for failure to prosecute, but this has not yet occurred. Moreover, the orders
are not among the types of interlocutory orders that are permitted to be
appealed by statute. See § 1292(a)(1). The district court has not certified in
writing that the orders involve a “controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination of the
litigation.” § 1292(b). Neither has the district court certified the matter for
immediate appeal under Fed. R. Civ. P. 54(b). See DeMelo v. Woolsey
Marine Indus., Inc., 677 F.2d 1030, 1031-32 (5th Cir. 1982) (discussing and
comparing § 1292(b) and Rule 54(b)). As we therefore lack jurisdiction, this
appeal must be DISMISSED.
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