FILED

United States Court of Appeals

Tenth Circuit

June 3, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RICHARD G. KIRBY,

Plaintiff-Appellant,

v.

DALLAS COUNTY ADULT

PROBATION DEPARTMENT,

Community Supervision and

Corrections Department, Dallas Co.;

MARK OLSEN; D. TODD HILL,

Probation Officer, Dallas County

Probation Department; LAURA

CARAWAY, Probation Officer

Supervisor, Dallas County Probation

Department; JIM MILLS, Assistant

Director, Dallas County Probation

Department; ROBERT L. WEBSTER,

Assistant U.S. Attorney, Dallas,

Texas; GRANT COUNTY DISTRICT

ATTORNEY’S OFFICE; JIM FOY,

Prior Grant County District Attorney;

ARNOLD CHAVEZ, Grant County

DA Investigator; MARY LYNN

NEWELL, Grant County District

Attorney; TIM GARNER, Grant

County Assistant District Attorney,

Sixth Judicial District, Silver City,

New Mexico; NEW MEXICO

SECURITIES DIVISION; BRUCE

KOHL; JAMES MAES, New Mexico

Securities Division, Santa Fe,

New Mexico; JOHN DOE; JANE

DOE, Grant County Detention Center,

Grant County, New Mexico;

DONA ANA COUNTY DISTRICT

ATTORNEY; TOM CLARK;

No. 07-2125

(D.C. No. 04-CV-844-DJS-ACT)

(D. N.M.)
-2-

MICHAEL CAIN, Assistant District

Attorney, Las Cruces, New Mexico;

KANSAS SECURITIES DIVISION,

Topeka, Kansas; GARY FULTON;

SCOTT SCHULTZ, Kansas Securities

Division, Topeka, Kansas; FIRST

NEW MEXICO BANK, doing

business as Copper Country Escrow;

MARTHA STEWART; JOHN DOE;

JANE DOE, First New Mexico Bank,

Silver City, New Mexico; GENE

CRAWFORD; HAROLD JOHNSON,

Pinto Altos, New Mexico; UNITED

STATES SECRET SERVICE;

CHUCK QUINN, Agent, United States

Secret Service, Wichita, Kansas;

ANDREW BAZEMORE, Agent,

United States Secret Service,

Albuquerque, New Mexico; BUTLER

COUNTY SHERIFF’S

DEPARTMENT; RANDY COFFMAN,

Butler County Sheriff’s Investigator;

MIKE TANNER, Butler County

Sheriff’s Deputy, El Dorado, Kansas;

STEVE HOWE, Assistant District

Attorney, Olathe, Kansas; BILL

MATTIACE, Las Cruces Mayor,

Adventure Travel, Las Cruces,

New Mexico; J.D. JONES,

Investigator, Las Cruces Police

Department; RICKY MADRID, Sgt.,

Las Cruces Police Department, Las

Cruces, New Mexico; THE SILVER

CITY POLICE DEPARTMENT, Silver

City, New Mexico; HAM, Lt.;

UNKNOWN POLICE OFFICERS,

Silver City Police Department, Silver

City, New Mexico; RANDALL

HARRIS, Curry County District

Attorney, at the time, Clovis, New
* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

-3-

Mexico; JOHN DOES; JANE DOES;

FREDERICK SHERMAN, Attorney at

Law, for First New Mexico Bank,

Deming, New Mexico; GRANT

COUNTY DETENTION CENTER,

County of Grant, New Mexico, Silver

City, New Mexico,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before LUCERO and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit

Judge.

Richard G. Kirby appeals the district court’s denial of his motion for a

mandatory injunction in district court docket number 257 and its dismissal of his

claims against certain defendants in district court docket number 258. We note

that Mr. Kirby brought claims against numerous defendants in this action, and

that the district court has yet to dispose of many of his claims. Consequently, this

appeal is an interlocutory appeal. Defendant First New Mexico Bank of Silver

City has moved to dismiss the appeal for lack of jurisdiction. 
-4-

We have jurisdiction over the interlocutory appeal of district court docket

number 257 because that order is an express denial of injunctive relief. See

28 U.S.C. § 1292(a) (providing jurisdiction to review “[i]nterlocutory orders of

the district courts . . . or of the judges thereof . . . refusing . . . injunctions”). The

district court correctly construed the motion as one for a preliminary injunction,

and we review the denial of a preliminary injunction for an abuse of discretion. 

See Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061, 1065 (10th Cir.

2001). “An abuse of discretion occurs only when the trial court bases its decision

on an erroneous conclusion of law or where there is no rational basis in the

evidence for the ruling.” Id. (quotation omitted). The district court did not abuse

its discretion in denying Mr. Kirby’s motion for a mandatory injunction. 

Accordingly, we affirm the district court’s decision for substantially the reasons

stated in district court docket number 257.

In contrast, we lack jurisdiction over the interlocutory appeal of district

court docket number 258. With some exceptions, such as § 1292(a), this court

generally has jurisdiction to review only “final decisions” of the district courts. 

28 U.S.C. § 1291. An order that disposes of “fewer than all the claims or the

rights and liabilities of fewer than all the parties does not end the action as to any

of the claims or parties” unless the district court “expressly determines that there

is no just reason for delay” and “direct[s] entry of a final judgment as to one or

more, but fewer than all, claims or parties.” Fed. R. Civ. P. 54(b). Thus, “[i]n
-5-

the absence of [a Rule 54(b)] determination, any order, however designated,

which adjudicates fewer than all of the claims or the liabilities of all of the

parties, is not a final appealable order.” Atiya v. Salt Lake County, 988 F.2d

1013, 1016 (10th Cir. 1993). This is so even if the order may seem “final” as far

as the particular defendants and/or claims addressed therein are concerned. Our

review of the district court’s docket indicates that, to date, claims against more

than thirty defendants remain pending in the district court. Moreover, district

court docket number 258 does not contain a Rule 54(b) determination. 

Accordingly, we do not have jurisdiction over the appeal of district court docket

number 258.

The denial of Mr. Kirby’s motion for a mandatory injunction in district

court docket number 257 is AFFIRMED. First New Mexico Bank of Silver City’s

motion to dismiss the appeal is GRANTED in part, and the portion of this appeal

that concerns district court docket number 258 is DISMISSED for lack of

appellate jurisdiction.

Entered for the Court

John C. Porfilio

Circuit Judge