Terrell v. The City of El Paso , 176 F. App'x 623 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2006
Charles R. Fulbruge III
Clerk
No. 04-51281
Summary Calendar
JAMES K. TERRELL,
Plaintiff-Appellant,
versus
CITY OF EL PASO; CARLOS LEON, Chief; ALFONSO NEVAREZ, Officer;
SAUL VILLALOBOS, Officer; RODNEY MOOERS, Officer; MARK TELLES,
Officer; DEBRA PONKO, Officer; ROBERT ROMERO, Officer; JACK
MATTHEWS, Sergeant; HARRY FARLOW, Sergeant; WADE FORRISTER,
Sergeant; ANNA NAVEDO, Detective; TED PORRAS, Detective; COUNTY
OF EL PASO; JAIME ESPARZA, Individually and as District Attorney;
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
(3:03-CV-364)
--------------------
Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant James K. Terrell appeals the district
court’s grant of summary judgment, on grounds of qualified
immunity, in favor of Defendants-Appellees Chief Carlos Leon and
several officers of the El Paso Police Department. We dismiss this
appeal without prejudice to refile, as we lack jurisdiction to
review it.
*
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that this opinion should not be published and is not precedent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.
We are without jurisdiction to review the summary judgment
because it is not a final decision.1 “[A]s a general rule, all
claims and issues in a case must be adjudicated before appeal, and
a notice of appeal is effective only if it is from a final order or
judgment.”2 Terrell’s appeal is ineffective at this time because
there are still claims and issues pending in the district court,
including the City’s, County’s, and District Attorney’s motions for
summary judgment.
Moreover, Terrell’s appeal does not fit within the collateral
order exception to the final judgment rule,3 which exception is
reserved for decisions that would “be effectively unreviewable on
appeal from a final judgment” and for that reason require immediate
review.4 In sharp contrast to an order denying immunity, the
district court’s summary judgment granting qualified immunity can
be fully reviewed after a final judgment. Terrell’s “objection to
1
See 28 U.S.C. § 1291 (“The courts of appeals ... shall
have jurisdiction of appeals from all final decisions of the
district courts of the United States ....”).
2
Swope v. Columbian Chems. Co., 281 F.3d 185, 191 (5th Cir.
2002).
3
The collateral order exception permits appellate review of
a “small class” of nonfinal judgments that “finally determine
claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and too
independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.”
Cohen v. Beneficial Indus. Loan Corp., 371 U.S. 541, 546 (1949).
4
Baldridge v. SBC Commc’ns, Inc., 404 F.3d 930, 931 (5th
Cir. 2005) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978)).
2
the district court’s order in this context is in no danger of
becoming moot if appellate consideration is delayed until final
judgment.”5
Terrell contends that we have pendent jurisdiction over the
district court’s order granting qualified immunity because the
order is “inextricably intertwined” with another issue separately
on appeal, viz., the denial of his motion for declaratory
judgment.6 This argument fails because we do not in fact have
jurisdiction to review that appeal7; by definition there can be no
pendent jurisdiction here.
This appeal is accordingly
DISMISSED without PREJUDICE.
5
Thompson v. Betts, 754 F.2d 1243, 1246 (5th Cir. 1985).
We are aware that Thompson dealt with a grant of absolute — as
opposed to qualified — immunity, but this difference is of no
consequence here; it might matter only where a claim of immunity
is denied. See Kenyatta v. Moore, 744 F.2d 1179, 1183-86 (5th
Cir. 1984) (holding denial of qualified immunity, which affords
less protection to defendants than absolute immunity, not
immediately appealable).
6
Terrell’s appeal of the denial of his motion for
declaratory judgment has been assigned Fifth Circuit case number
04-51283.
7
James K. Terrell v. City of El Paso, 04-51283 (5th Cir.
Apr. __, 2006) (unpublished) (rendered contemporaneously with
this opinion).
3