Russell Berger v. Bell, et al

Filing 920090529

Opinion

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 09-1187 ___________ Russell Berger, * * Appellant, * * v. * * Bell, Kitchen Supervisor, East * Arkansas Regional Unit, ADC; Greg * Harmon, Warden, East Arkansas * Regional Unit, ADC; Ray Hobbs, * Assistant Director, Arkansas * Department of Correction; Williams, * Sgt., East Arkansas Regional Unit, * ADC; Bryant, Correctional Officer, * East Arkansas Regional Unit, ADC; * Wilson, Chaplain, East Arkansas * Regional Unit, ADC; Glenny, * Assistant Chaplain, East Arkansas * Regional Unit, ADC; Does, (1) * Unknown, Ad-Hoc Committee; * Kelley, Assistant Deputy Director, * Arkansas Department of Correction; * Larry Norris, Director, Arkansas * Department of Correction; Hall, * Kitchen Supervisor, East Arkansas * Regional Unit, ADC; Kay Skillen, * (originally sued as Jane Doe, Dietician), * * Appellees.

Appeal from the United States District Court for the Eastern District of Arkansas. [UNPUBLISHED]

___________ Submitted: May 19, 2009 Filed: May 29, 2009 ___________ Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges. ___________ PER CURIAM. Russell Berger appeals the district court's1 partial grant of summary judgment to defendants in his 42 U.S.C. § 1983 action. Although the parties address the merits of the district court's ruling, we have an independent obligation to examine our own jurisdiction. See Nolles v. State Comm. for Reorg. of Sch. Dists., 524 F.3d 892, 897 (8th Cir.), cert. denied, 129 S. Ct. 418 (2008). Because the summary judgment order clearly left issues unresolved and the district court did not certify the order for interlocutory appeal under Federal Rule of Civil Procedure 54(b), we find that the order was neither final nor appealable. See 28 U.S.C. § 1291; Dieser v. Cont'l Cas. Co., 440 F.3d 920, 923 (8th Cir. 2006). Thus, we dismiss the appeal for lack of jurisdiction. ______________________________

The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas. -2-

1