Malich Reed v. John Does , 454 F. App'x 536 ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2888
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Malich Reed, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
John Does, 1-4, FCI Forrest City; T. C. * Eastern District of Arkansas.
Outlaw, Warden, FCI - Forrest City; *
Breckon, Captain, FCI - Forrest City; * [UNPUBLISHED]
M Jemmott, Lt., FCI - Forrest City, *
*
Appellees. *
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Submitted: January 6, 2012
Filed: January 26, 2012
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Before LOKEN, BYE, and COLLOTON, Circuit Judges.
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PER CURIAM.
Federal inmate Malich Reed appeals following the district court’s1 adverse
grant of partial summary judgment and denial of reconsideration in his action under
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 3881
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendations of the
Honorable H. David Young, United States Magistrate Judge for the Eastern District
of Arkansas.
(1971). While the parties have not raised the issue, we conclude that we lack
jurisdiction to entertain Reed’s appeal. See Huggins v. FedEx Ground Package Sys.,
Inc., 566 F.3d 771, 773 (8th Cir. 2009) (where it appears jurisdiction is lacking,
appellate courts are obligated to consider sua sponte jurisdictional issues).
Specifically, there is no final judgment because Reed’s excessive-force claim is still
pending below, see 28 U.S.C. § 1291 (courts of appeals have jurisdiction of appeals
from final decisions); Thomas v. Basham, 931 F.2d 521, 523 (8th Cir. 1991) (appeal
was premature when some claims remained pending), and none of the exceptions to
the final-judgment rule apply, see Huggins, 566 F.3d at 775 (interlocutory appeal
under 28 U.S.C. § 1292(b)); Krein v. Norris, 250 F.3d 1184, 1187 (8th Cir. 2001)
(collateral-order doctrine); Thomas, 931 F.2d at 523 (Fed. R. Civ. P. 54(b)
certification). Accordingly, we dismiss the appeal as premature.
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