McKinley v. Terrebonne Parish

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30065
Summary Calendar
MARIO McKINLEY,
Plaintiff-Appellant,
versus
TERREBONNE PARISH SHERIFF
DEPUTIES, ET AL.,
Defendants,
BRYAN BOUGARD, Deputy;
PHILIP PITRE, Deputy;
DR. SPENCE; JERRY LARPENTER,
Sheriff; ROBERT BERGERON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CV-2735-F
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July 11, 2001
Before HIGGINBOTHAM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Mario McKinley has filed an application for leave to proceed
in forma pauperis (IFP) on appeal, following the district court's
dismissal of some, but not all, of the defendants in his 42
U.S.C. § 1983 complaint. Because McKinley has since paid the
filing fee, his IFP motion is DENIED AS MOOT.
*
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that this opinion should not be published and is not precedent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. 01-30065
-2-
McKinley does not address whether the district court’s order
was final and thus appealable. This court must examine the basis
of its jurisdiction on its own motion if necessary. See Mosley
v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
In a case involving multiple defendants, a district court’s
order is “final” only if: (1) it adjudicates all the claims of
all the parties, or (2) the court expressly determines that there
is “no just reason for delay” and directs entry of judgment under
Fed. R. Civ. P. 54(b). Riley v. Wooten, 999 F.2d 802, 804 (5th
Cir. 1993)(citation omitted).
The order appealed from was not certified under Rule 54(b)
and does not fall into the specific class of orders listed in 28
U.S.C. § 1292(a). The order is therefore not final, and this
court is without jurisdiction to consider it. Accordingly, the
appeal is DISMISSED FOR LACK OF JURISDICTION.
McKinley’s pro se motion for appointment of new counsel and
court-appointed counsel’s motion for leave to withdraw as counsel
are DENIED WITHOUT PREJUDICE to being reasserted before the
district court.
IFP MOTION DENIED AS MOOT; MOTION FOR APPOINTMENT OF NEW
COUNSEL AND MOTION FOR LEAVE TO WITHDRAW AS COUNSEL DENIED
WITHOUT PREJUDICE; APPEAL DISMISSED.