Ronald O'Neal v. Robert Scott, et al
Filing
PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Steven M. Colloton and Duane Benton (UNPUBLISHED) [4151843] [13-2550]
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2550
___________________________
Ronald Dee O'Neal
lllllllllllllllllllll Plaintiff - Appellee
v.
Correctional Medical Services, Inc.; Roland Anderson, Dr., Correctional Medical Services
lllllllllllllllllllll Defendants
Robert Scott, Dr., Correctional Medical Services; Rory Griffin, Administrator,
Correctional Medical Services; Estate of James Blackmon, (originally sued as Dr.
James Blackmon)
lllllllllllllllllllll Defendants - Appellants
Wendy Kelley, Deputy Director, Arkansas Department of Correction
lllllllllllllllllllll Defendant
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: April 7, 2014
Filed: May 8, 2014
[Unpublished]
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Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
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Appellate Case: 13-2550
Page: 1
Date Filed: 05/08/2014 Entry ID: 4151843
PER CURIAM.
Defendants Dr. Robert Scott, Rory Griffin, and the Estate of James Blackmon
appeal the district court’s1 orders denying their motions for summary judgment, and
dismissing Ronald O’Neal’s complaint without prejudice pursuant to Fed. R. Civ. P.
41(a)(2).
The orders denying summary judgment are not appealable. See Burke v. Ernest
W. Hahn, Inc., 592 F.2d 542, 544, 546 (9th Cir. 1979) (in appeal from denial of
motion for summary judgment and dismissal of action, holding that denial of
summary judgment was not appealable, and dismissing that aspect of appeal); Dutton
v. Cities Serv. Def. Corp., 197 F.2d 458, 458-60 (8th Cir. 1952) (same); see also
Dieser v. Cont’l Cas. Co., 440 F.3d 920, 923 (8th Cir. 2006) (court will raise
jurisdictional issues sua sponte when there is indication jurisdiction is lacking); cf.
Lopez v. Tyson Foods, Inc., 690 F.3d 869, 875 (8th Cir. 2012) (denial of summary
judgment is not appealable after trial and final judgment, regardless whether issue is
factual or purely legal).
Defendants make no argument challenging the district court’s order dismissing
the complaint without prejudice, thereby waiving the issue. See Jenkins v. Winter,
540 F.3d 742, 751 (8th Cir. 2008) (issues not raised in opening brief are deemed
waived).
The appeal is dismissed.
______________________________
1
The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.
-2-
Appellate Case: 13-2550
Page: 2
Date Filed: 05/08/2014 Entry ID: 4151843
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