Kelvin Canada v. Christopher Gilbert

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999968510-2], denying Motion to appoint/assign counsel [1000024753-3], denying Motion to appoint/assign counsel [1000038613-2]. Originating case number: 7:16-cv-00190-JPJ-RSB. Copies to all parties and the district court. [1000291046]. Mailed to: Kelvin Canada. [16-7496]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7496

KELVIN A. CANADA,
Plaintiff - Appellant,
v.
CHRISTOPHER GILBERT, Lieutenant at Red Onion State Prison; J. LOVELL,
Officer at Red Onion State Prison; F. CALABRO, Officer at Red Onion State
Prison; JOHNNY HALL, Sergeant at Red Onion State Prison; EARL
BARKSDALE, Warden at Red Onion State Prison; ISRAEL HAMILTON,
Assistant Warden at Red Onion State Prison; DELMAR TATE, Major at Red
Onion State Prison; A. J. GALLIHAR, Chap=Chief of Housing and Programs at
Red Onion State Prison; HENRY PONTON, Regional Administrator for the
Western VA DOC Region; HAROLD CLARKE, VA DOC Director; A. DAVID
ROBINSON, Chief of Operations for the VA DOC; JESSE WAGNER, S.I.U.
Agent-Special Investigation Unit Agent for the VA DOC,
Defendants - Appellees.

Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. James P. Jones, District Judge. (7:16-cv-00190-JPJ-RSB)

Submitted: March 30, 2018

Decided: May 9, 2018

Before GREGORY, Chief Judge, and HARRIS, Circuit Judge, and SHEDD, Senior
Circuit Judge.

Dismissed and remanded by unpublished per curiam opinion.

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Kelvin A. Canada, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kelvin A. Canada appeals the district court’s order summarily dismissing, under
28 U.S.C. § 1915A(b) (2012), his 42 U.S.C. § 1983 (2012) supplemented complaint.
Before addressing the merits of Canada’s appeal, we first must be assured that we have
jurisdiction. Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015). We may exercise
jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and
collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 545-47 (1949). “Ordinarily, a district court order is not
final until it has resolved all claims as to all parties.” Porter, 803 F.3d at 696 (internal
quotation marks omitted); see Fed. R. Civ. P. 54(b). “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.” Porter, 803 F.3d at
696.
Canada alleged numerous claims based on his incarceration at Red Onion State
Prison (“ROSP”). Although the district court addressed the vast majority of these claims,
it did not address Canada’s claim that ROSP’s visual body cavity strip searches were
conducted in violation of the Eighth Amendment. The court addressed the claim under
the Fourth Amendment—but not the Eighth. Because the district court did not resolve
this claim, we lack jurisdiction over this appeal. See id. at 695, 699.
Accordingly, we dismiss the appeal as interlocutory and remand to the district
court for consideration of Canada’s claim that strip searches violated the Eighth
Amendment. We express no opinion regarding the merits of Canada’s claims. We deny
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Canada’s motions and supplemental motion for appointment of counsel and dispense
with oral argument because the facts and legal contentions are adequately presented in
the materials before this court and argument would not aid the decisional process.

DISMISSED AND REMANDED

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