George Poole v. Darlene Wansing , 138 F. App'x 852 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3498
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George Poole, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Darlene Wansing; Gary Kempker; *
George Lombardi; David Terry; *
Michael Bowersox; Arlene O’Brien; *
Bobby Weber; Guard Anders; South * [UNPUBLISHED]
Central Correctional Center, Mailroom *
Staff, *
*
Appellees. *
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Submitted: May 16, 2005
Filed: May 19, 2005
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Before WOLLMAN, FAGG, and COLLOTON, Circuit Judges.
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PER CURIAM.
Former Missouri inmate George Poole appeals from the district court’s order
granting defendant’s motion to dismiss his civil rights and tort complaint against
various prison officials. We grant Poole leave to proceed in forma pauperis, and
dismiss the appeal for want of jurisdiction.
The judgment was not a final, appealable order, because it did not dispose of
all of Poole’s claims. See 28 U.S.C. § 1291 (creating appellate jurisdiction over final
decisions of district courts); Fed. R. Civ. P. 54(b) (“order or other form of decision,
however designated, which adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate the action as to any of the
claims or parties”). Poole’s complaint stated that defendant Missouri Department of
Corrections Director Gary Kempker improperly refused him release money and other
funds, and that some of the other defendants in various ways violated his First,
Fourth, Fifth, Eighth, and Fourteenth Amendment rights. Poole expanded on his
claims in his objections to the magistrate’s report and recommendation, stating that
defendants opened and kept his legal mail, searched his cell in the middle of the
night, and kept him naked in a cold cell for 23 hours. The court’s order from which
Poole seeks to appeal addressed only a due process claim relating to the state court’s
refusal to waive a service-of-process fee.
Therefore, we dismiss the appeal for want of jurisdiction. See Thomas v.
Basham, 931 F.2d 521, 522-24 (8th Cir. 1991) (appellate courts have obligation to
raise jurisdictional issues sua sponte “when there is an indication that jurisdiction is
lacking”; appeal was “clearly premature” where some claims were still pending).
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