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James Striblin v. Duan Killian ( 2020 )


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  •      Case: 19-50207      Document: 00515336574         Page: 1    Date Filed: 03/09/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 9, 2020
No. 19-50207
Lyle W. Cayce
Clerk
JAMES STRIBLIN,
Plaintiff-Appellant
v.
DETECTIVE DUAN KILLIAN, San Antonio Police Department; DETECTIVE
PETER WELLMAN, San Antonio Police Department; OFFICER RAFEAL
MEDEL, San Antonio Police Department,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:18-CV-902
Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:*
James Striblin, Texas prisoner # 2178232, filed a notice of appeal
following the district court’s dismissal of claims against some of the defendants
set forth in his
    42 U.S.C. § 1983
     complaint. The district court entered a final
judgment dismissing the complaint in its entirety as to all defendants months
after Striblin filed his notice of appeal. Striblin now moves for leave to proceed
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-50207     Document: 00515336574      Page: 2    Date Filed: 03/09/2020
No. 19-50207
in forma pauperis (IFP) following the district court’s certification that the
appeal was not taken in good faith. He also requests appointment of appellate
counsel and moves to supplement the record.
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).           Our
jurisdiction is limited to appeals from “final decisions of the district courts.”
    28 U.S.C. § 1291
    .     Under Federal Rule of Civil Procedure 54(b), a decision,
however designated, that adjudicates fewer than all the claims may be
considered on appeal only if the district court expressly determines that there
is no just reason for delay and expressly directs entry of a final judgment. A
district court satisfies the requirements for entering an order of final judgment
under Rule 54(b) “[i]f the language in the order appealed from, either
independently or together with related portions of the record referred to in the
order, reflects the district court’s unmistakable intent to enter a partial final
judgment under Rule 54(b).” Kelly v. Lee’s Old Fashioned Hamburgers, Inc.,
    908 F.2d 1218
    , 1220 (5th Cir. 1990) (en banc); see also Briargrove Shopping
Ctr. Joint Venture v. Pilgrim Enter.,
    170 F.3d 536
    , 538-41 (5th Cir. 1999).
Neither the dismissal nor anything else in the record indicates that the
district court intended to issue a partial final judgment under Rule 54(b).
Additionally, Striblin’s premature notice of appeal was not effective as to the
subsequent final judgment because the notice of appeal followed a decision that
was not immediately appealable. See United States v. Cooper,
    135 F.3d 960
    ,
962-63 (5th Cir. 1998). Accordingly, this court is without jurisdiction over
Striblin’s appeal of the district court’s partial dismissal. See Briargrove,
    170 F.3d at 541
    ; Cooper,
    135 F.3d at 962-63
    .
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Case: 19-50207   Document: 00515336574    Page: 3   Date Filed: 03/09/2020
No. 19-50207
The appeal is DISMISSED for lack of jurisdiction. The motion to proceed
IFP, the motion for the appointment of counsel, and the motion to supplement
the record are DENIED.
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