Justin Kelly v. Sarah Conner
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-00636-DSC. Copies to all parties and the district court. [999976750]. Mailed to: Kevin Galyan. [15-1702]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1702
JUSTIN SHERILL KELLY,
Plaintiff – Appellant,
v.
SARAH H. CONNER; NORTH CAROLINA PRIVATE PROTECTION SERVICES
BOARD; MICHAEL FORD; WILLIAM MURRAY; GILBERTO NARVAEZ; JASON
KERL; ERIC MICKLEY; RODNEY MONROE; CITY OF CHARLOTTE; JAMES
KEVIN GALYAN,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
David S. Cayer,
Magistrate Judge. (3:13-cv-00636-DSC)
Argued:
October 25, 2016
Decided:
November 29, 2016
Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.
Dismissed and remanded by unpublished per curiam opinion.
ARGUED: Cynthia Earline Everson, EVERSON LAW FIRM, PLLC,
Gastonia, North Carolina, for Appellant.
Jeffrey P. Gray,
BAILEY
&
DIXON,
Raleigh,
North
Carolina;
Robert
Dennis
McDonnell, Charlotte, North Carolina, for Appellees.
ON BRIEF:
Lauren Tally Earnhardt, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, Harold Franklin Askins, OFFICE OF THE
ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina, for
Appellee Sarah H. Conner; Richard Harcourt Fulton, OFFICE OF THE
CITY ATTORNEY, Charlotte, North Carolina, for Appellee City of
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Charlotte; Mark H. Newbold, Charlotte, North Carolina, for
Appellees Michael Ford, William Murray, Gilberto Narvaez, Jason
Kerl, and Eric Mickley.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Officers from the Charlotte-Mecklenburg Police Department
arrested Justin Kelly on two occasions in 2011 for violating
North Carolina’s Private Protective Services Act (PPSA), N.C.
Gen. Stat. § 74C-13(a). Kelly brought this action against those
officers,
the
Private
Protective
Services
Board
(PPSB),
and
other related defendants (collectively the Defendants), raising
claims
under
both
federal
and
state
law.
Relevant
here,
in
Counts 11 and 12 Kelly sought a declaratory judgment under North
Carolina law that the PPSA did not apply to him (Count 11) and
that he had a right to possess firearms (Count 12).
Following
discovery,
the
Defendants
filed
motions
for
summary judgment. Kelly filed a cross motion for partial summary
judgment limited to Counts 11 and 12. The district court granted
judgment in favor of the Defendants.
Regarding Kelly’s motion for partial summary judgment, the
district court did not discuss the declaratory judgments sought
in Counts 11 and 12. Instead, the court explained that Kelly
sought
“declaratory
application
of
the
.
.
[PPSA]
.
relief
violated
claiming
his
the
rights
Defendants’
under
the
Due
Process and Equal Protection clauses.” * (J.A. 1035). The court
*
Counts 9 and 13 contained allegations
violated Kelly’s constitutional rights.
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that
the
PPSA
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then concluded that the PPSA did not violate those rights and
that
“[f]or
these
reasons,
Plaintiff’s
Motion
for
Summary
Judgment as to his Fourteenth Amendment claims is denied.” (J.A.
1035) (emphasis in original). Kelly timely appealed.
Even if the parties have not questioned our jurisdiction,
we
have
an
independent
obligation
to
establish
it
before
proceeding to the merits of an appeal. See Porter v. Zook, 803
F.3d 694, 696 (4th Cir. 2015). “With few narrow exceptions,”
none of which applies here, “our jurisdiction extends only to
‘appeals from . . . final decisions of the district courts of
the United States.’” United States v. Myers, 593 F.3d 338, 344
(4th Cir. 2010) (quoting 28 U.S.C. § 1291). A decision from the
district court is “final” if “it has resolved all claims as to
all parties.” Fox v. Baltimore City Police Dep’t, 201 F.3d 526,
530 (4th Cir. 2000). We make that assessment by looking at the
“substance”
of
the
district
court’s
decision,
“not
form.”
Porter, 803 F.3d at 696. Thus, “[r]egardless 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.” Id.
In Porter, the habeas petitioner raised “two related but
distinct claims” for juror bias. Id. at 697. The district court
recognized and ruled upon one of the claims but not the other.
As we explained, the court “dismissed Porter’s petition without
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ruling on or seeming to recognize” the second claim, and “never
passes on a central component of that claim.” Id. at 698-99. In
those circumstances, the court’s failure meant that “it never
issued
a
final
decision
on
Porter’s
habeas
petition”
and,
consequently, meant that we lacked jurisdiction over the appeal.
Id. at 699.
We conclude that a similar result is required here. The
district
court
judgment,
but
denied
it
did
Kelly’s
so
motion
“without
for
ruling
partial
on
or
summary
seeming
to
recognize” the relief requested by Counts 11 and 12, and it
“never passe[d]” on the “central component” of those claims. The
fact that the court “mislabel[ed] a non-final judgment ‘final’
does not make it so.” Stillman v. Travelers Ins. Co., 88 F.3d
911, 914 (11th Cir. 1996) (internal quotation marks omitted).
Accordingly, because the district court did not rule on
Counts 11 and 12, it “actually granted partial summary judgment,
and
an
order
that
grants
partial
summary
judgment
‘is
interlocutory in nature.’” C.H. ex rel. Hardwick v. Heyward, 404
Fed.
App’x
765,
768
(4th
Cir.
2010)
(quoting
American
Canoe
Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003)).
We
therefore
dismiss
Kelly’s
appeal
and
remand
the
case
for
further proceedings.
DISMISSED AND REMANDED
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