Gates v. Cook

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60878
Summary Calendar
NAZARETH NMI GATES ETC.; ET AL.,
Plaintiffs,
versus
THOMAS D. COOK ETC.; ET AL.,
Defendants.
-----------------------------
DERRICK SOLOMON PRUITT,
Plaintiff-Appellant,
versus
RONNIE MUSGROVE, Governor; ROBERT L. JOHNSON,
COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS; EMMITT L. SPARKMAN, Superintendent
of Parchman; RONALD R. WELCH, Attorney at Law,
Class Counsel; KIRK FORDICE, Ex-Governor of the
State of Mississippi; JAMES V. ANDERSON,
Ex-Commissioner of the Mississippi Department of
Corrections; CHRISTOPHER EPPS, Deputy Commissioner
of the Mississippi Department of Corrections;
WALTER BOOKER, Ex-Superintendent of the Mississippi
Department of Corrections; DWIGHT PRESELY, Warden
Area II, Mississippi Department of Corrections;
LEONARD VINCENT, General Counsel, Staff Attorney,
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
--------------------
March 18, 2003
No. 02-60878
-2-
Before JOLLY, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Derrick Solomon Pruitt, Mississippi prisoner # 46846,
appeals the district court’s resolution of his 42 U.S.C. § 1983action 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 concluding that his challenges to the prison conditions
were without merit. The district court did not rule on the
merits of Pruitt’s condition claims; the case was consolidated
with Gates v. Musgrove, No. 4:71CV6-JAD.
Pruitt 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 Jay
Boler, Mississippi prisoner # 34750. 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).
Pruitt 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
*
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that this opinion should not be published and is not precedent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.
No. 02-60878
-3-
U.S.C. § 1291; Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22
(1988). As the district court did not make an “express
determination 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., 170 F.3d 536, 538 (5th Cir. 1999).
Pruitt asserts that he was entitled to injunctive relief.
He has not, however, challenged the basis for the district
court’s dismissal of his injunctive claims. Consequently, he has
abandoned any argument on this issue. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Pruitt maintains that he should receive attorney fees as a
“prevailing party” because his lawsuit was a “catalyst” for
prison changes. A “prevailing party” does not include a
plaintiff who achieves his desired result because he files a
lawsuit that brings about a voluntary change in the defendant’s
conduct. See Buckhannon Bd. and Care Home, Inc. v. West Virginia
Dep’t of Health and Human Res., 532 U.S. 598, 600 (2001).
Pruitt has not briefed any claim that is properly appealable
to this court at this time. Consequently, his APPEAL IS
DISMISSED.