Justin Kelly v. Sarah Conner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1702
JUSTIN SHERILL KELLY,
Plaintiff – Appellant,
v.
SARAH H. CONNER; NORTH CAROLINA PRIVATE PROTECTION SERVICES
BOARD; MICHAEL FORD; WILLIAM MURRAY; GILBERTO NARVAEZ; JASON
KERL; ERIC MICKLEY; RODNEY MONROE; CITY OF CHARLOTTE; JAMES
KEVIN GALYAN,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. David S. Cayer,
Magistrate Judge. (3:13-cv-00636-DSC)
Argued: October 25, 2016 Decided: November 29, 2016
Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.
Dismissed and remanded by unpublished per curiam opinion.
ARGUED: Cynthia Earline Everson, EVERSON LAW FIRM, PLLC,
Gastonia, North Carolina, for Appellant. Jeffrey P. Gray,
BAILEY & DIXON, Raleigh, North Carolina; Robert Dennis
McDonnell, Charlotte, North Carolina, for Appellees. ON BRIEF:
Lauren Tally Earnhardt, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, Harold Franklin Askins, OFFICE OF THE
ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina, for
Appellee Sarah H. Conner; Richard Harcourt Fulton, OFFICE OF THE
CITY ATTORNEY, Charlotte, North Carolina, for Appellee City of
Charlotte; Mark H. Newbold, Charlotte, North Carolina, for
Appellees Michael Ford, William Murray, Gilberto Narvaez, Jason
Kerl, and Eric Mickley.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Officers from the Charlotte-Mecklenburg Police Department
arrested Justin Kelly on two occasions in 2011 for violating
North Carolina’s Private Protective Services Act (PPSA), N.C.
Gen. Stat. § 74C-13(a). Kelly brought this action against those
officers, the Private Protective Services Board (PPSB), and
other related defendants (collectively the Defendants), raising
claims under both federal and state law. Relevant here, in
Counts 11 and 12 Kelly sought a declaratory judgment under North
Carolina law that the PPSA did not apply to him (Count 11) and
that he had a right to possess firearms (Count 12).
Following discovery, the Defendants filed motions for
summary judgment. Kelly filed a cross motion for partial summary
judgment limited to Counts 11 and 12. The district court granted
judgment in favor of the Defendants.
Regarding Kelly’s motion for partial summary judgment, the
district court did not discuss the declaratory judgments sought
in Counts 11 and 12. Instead, the court explained that Kelly
sought “declaratory . . . relief claiming the Defendants’
application of the [PPSA] violated his rights under the Due
Process and Equal Protection clauses.” * (J.A. 1035). The court
* Counts 9 and 13 contained allegations that the PPSA
violated Kelly’s constitutional rights.
3
then concluded that the PPSA did not violate those rights and
that “[f]or these reasons, Plaintiff’s Motion for Summary
Judgment as to his Fourteenth Amendment claims is denied.” (J.A.
1035) (emphasis in original). Kelly timely appealed.
Even if the parties have not questioned our jurisdiction,
we have an independent obligation to establish it before
proceeding to the merits of an appeal. See Porter v. Zook, 803
F.3d 694, 696 (4th Cir. 2015). “With few narrow exceptions,”
none of which applies here, “our jurisdiction extends only to
‘appeals from . . . final decisions of the district courts of
the United States.’” United States v. Myers, 593 F.3d 338, 344
(4th Cir. 2010) (quoting 28 U.S.C. § 1291). A decision from the
district court is “final” if “it has resolved all claims as to
all parties.” Fox v. Baltimore City Police Dep’t, 201 F.3d 526,
530 (4th Cir. 2000). We make that assessment by looking at the
“substance” of the district court’s decision, “not form.”
Porter, 803 F.3d at 696. Thus, “[r]egardless of the label given
a district court decision, if it appears from the record that
the district court has not adjudicated all of the issues in a
case, then there is no final order.” Id.
In Porter, the habeas petitioner raised “two related but
distinct claims” for juror bias. Id. at 697. The district court
recognized and ruled upon one of the claims but not the other.
As we explained, the court “dismissed Porter’s petition without
4
ruling on or seeming to recognize” the second claim, and “never
passes on a central component of that claim.” Id. at 698-99. In
those circumstances, the court’s failure meant that “it never
issued a final decision on Porter’s habeas petition” and,
consequently, meant that we lacked jurisdiction over the appeal.
Id. at 699.
We conclude that a similar result is required here. The
district court denied Kelly’s motion for partial summary
judgment, but it did so “without ruling on or seeming to
recognize” the relief requested by Counts 11 and 12, and it
“never passe[d]” on the “central component” of those claims. The
fact that the court “mislabel[ed] a non-final judgment ‘final’
does not make it so.” Stillman v. Travelers Ins. Co., 88 F.3d
911, 914 (11th Cir. 1996) (internal quotation marks omitted).
Accordingly, because the district court did not rule on
Counts 11 and 12, it “actually granted partial summary judgment,
and an order that grants partial summary judgment ‘is
interlocutory in nature.’” C.H. ex rel. Hardwick v. Heyward, 404
Fed. App’x 765, 768 (4th Cir. 2010) (quoting American Canoe
Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003)).
We therefore dismiss Kelly’s appeal and remand the case for
further proceedings.
DISMISSED AND REMANDED
5