Kalvin Coward v. John Jabe
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cv-00147-LMB-TRJ Copies to all parties and the district court/agency. [999804293].. [14-6562]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6562
KALVIN DONNELL COWARD,
Plaintiff – Appellant,
v.
JOHN JABE, Deputy Director of Operations (VDOC); A. DAVID
ROBINSON, Eastern Regional Director (VDOC); G. F. SIVELS,
Eastern Regional Ombudsman (VDOC); GREGORY L. HOLLOWAY,
Assistant Warden, General Population; CLYDE R. ALDERMAN,
Assistant Warden, Work Center-Special Housing; R. WOODS,
Institutional
Ombudsman;
C.
HALL,
Sergeant
of
the
Institutional Investigation Unit,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:10-cv-00147-LMB-TRJ)
Submitted:
April 4, 2016
Decided:
April 26, 2016
Before SHEDD, THACKER, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Zachary Hudson, Robert M. Bernstein, BANCROFT PLLC, Washington,
D.C., for Appellant.
Mark R. Herring, Attorney General of
Virginia, Stuart A. Raphael, Solicitor General, Trevor S. Cox,
Deputy Solicitor General, Richard C. Vorhis, Senior Assistant
Attorney General,
Matthew
R.
McGuire,
Assistant
Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
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Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kalvin Donnell Coward, a Virginia inmate, appeals from the
summary judgment entered against him. We dismiss the appeal for
lack of appellate jurisdiction.
Coward professes to be a member of the Nation of Gods and
Earths (“NGE”), which the Virginia Department of Corrections has
classified
as
a
gang.
Contending
that
the
Department
is
discriminating against him based on his religion, Coward asserts
five causes of action against various Department officials. In
the first four, Coward alleges violations of the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”). In the fifth,
Coward
alleges
a
claim
of
constitutional
theological
discrimination.
Among
other
things,
Coward
argues
on
appeal
that
the
district court failed to address his theological discrimination
claim
in
the
summary
judgment
order.
As
he
explains:
“[O]ne
searches the District Court’s opinion in vain for any indication
that the court was even aware that Mr. Coward had raised a
separate
constitutional
theological
claim.”
Reply
Brief
for
Appellant, at 6. For this reason (and others), Coward contends
that
we
should
vacate
the
summary
judgment
and
remand
for
further proceedings.
The Department disagrees with Coward’s assessment of the
record. In moving for summary judgment, the Department expressly
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listed
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Coward’s
theological
four
RLUIPA
discrimination
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claims,
claim
in
and
a
it
referenced
footnote
the
appended
to
“Claim 1,” stating that Coward “added a claim #5 which more
directly
challenges
the
failure
to
recognize
the
NGE
as
a
religion. Since [the district court] has construed this claim to
be raised in claim 1, counsel has done likewise.” J.A. 306. The
Department
did
discrimination
not
claim
otherwise
in
a
address
meaningful
the
fashion
theological
in
its
summary
judgment motion. Without pointing to any specific part of the
summary
judgment
“[r]ather
than
order,
the
ignoring
Department
Coward’s
now
theological
asserts
that
discrimination
claim, the Department and district court treated it in tandem
with his RLUIPA claim for purposes of the Department’s motion
for
summary
judgment.”
Brief
of
Appellees,
at
61-62.
The
Department further asserts that because Coward cannot prevail on
his
RLUIPA
claims,
his
theological
discrimination
claim
necessarily fails.
Coward is correct that the district court did not expressly
address
the
theological
discrimination
claim
in
the
summary
judgment order. Indeed, a plain reading of the order supports
Coward’s contention that the court did not recognize that claim
at the time of the decision. For example, the court introduced
its analysis by noting that Coward’s claims arise under RLUIPA,
and it stated that the Department moved for summary judgment on
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“all four” of Coward’s claims. J.A. 449, 451. Later, the court
listed
and
addressed
Coward’s
four
claims,
and
its
analysis
involves RLUIPA only. There is simply nothing in the order to
suggest that the court considered the theological discrimination
claim when it ruled on the summary judgment motion.
Recently, in Porter v. Zook, 803 F.3d 694, 696-97 (4th Cir.
2015)
(internal
punctuation
and
citations
omitted),
we
explained:
The parties to this appeal have not questioned
our jurisdiction. But before we consider the merits of
an appeal, we have an independent obligation to verify
the existence of appellate jurisdiction. And that
jurisdiction generally is limited to appeals from
“final decisions of the district courts,” 28 U.S.C. §
1291 — decisions that end the litigation on the merits
and leave nothing for the court to do but execute the
judgment.
Ordinarily, a district court order is not final
until it has resolved all claims as to all parties. In
making that assessment, we look to substance, not
form. Regardless of the label given a district court
decision, if it appears from the record that the
district court has not adjudicated all of the issues
in a case, then there is no final order. . . .
[E]ven if a district court believes it has
disposed of an entire case, we lack appellate
jurisdiction where the court in fact has failed to
enter judgment on all claims.
Given the state of the record before us, Porter compels the
conclusion that we lack appellate jurisdiction.
As noted, nothing in the summary judgment order indicates,
or even suggests, that the district court considered and ruled
on
the
theological
discrimination
5
claim.
Rather,
the
court
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specifically addressed Coward’s “four” RLUIPA claims, and its
analysis is based entirely on RLUIPA. Therefore, the theological
discrimination claim is unresolved, and despite the fact that
the summary judgment was entered and the litigation was ended
below, we do not have a final decision to review. Accordingly,
the appeal must be dismissed.
Because
we
are
dismissing
this
appeal
on
jurisdictional
grounds, we decline to comment on the merits of the parties’
appellate arguments. We note, however, Coward’s argument that
the
district
court
improperly
granted
summary
judgment
on
a
ground not raised by the Department. On remand, the court and
the Department may wish to examine the record and, if necessary,
take steps to ensure that Coward has had (or will have) ample
opportunity to address any potentially dispositive grounds.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before us,
and oral argument would not aid the decisional process.
DISMISSED
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