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United States Court of Appeals,

Fifth Circuit.

No. 95-40856

Summary Calendar.

Tyrone Lamel WITHERSPOON, Plaintiff-Appellant,

v.

Ivan WHITE, in his official capacity as Warden, FCI Texarkana;

Janet Reno, in her official capacity as U.S. Attorney General; Up

Springfellow, in his official cap acity as Doctor, FCI Texarkana,

Wade Lee Medical Ce nter, Texarkana, Arkansas; Kathleen Hawk, in

her official capacity as Director of U.S. Bureau of Prisons, CMC

Cord Texarkana, AR, FCI, Defendants-Appellees.

May 2, 1997.

Appeal from the United States District Court for th e Eastern

District of Texas.

Before JOHNSON, WIENER and DENNIS, Circuit Judges.

JOHNSON, Circuit Judge:

Tyrone Lamel Witherspoon appeals the dismissal of his 42

U.S.C. § 1983 action. However, because the district court failed

to render a final judgment in this action, we dismiss the present

appeal for lack of jurisdiction.

I. Facts and Procedural History

Witherspoon, a federal prisoner, filed a civil rights

complaint pursuant to 42 U.S.C. § 1983 against Warden Ivan White,

United States Attorney General Janet Reno; a physician at the

Federal Correctional Institute in Texarkana, Texas, Dr.

Stringfellow; Director of United States Bureau of Prisons Kathleen1 Witherspoon filed his petition against all of the defendants

pursuant to § 1983. However, because some of the defendants

alleged to have violated Witherspoon's Eighth Amendment rights are

federal defendants, we construe his complaint against them as an

action under Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

See Stephenson v. Reno, 28 F.3d 26, 26 n. 1 (5th Cir.1994).

2 Jurisdictional defects prohibit t his court from addressing

the merits of whether the district court's denial of appointment of

counsel was improper. However, we note that substantial issues

involving Witherspoon's competency to represent himself were raised

on appeal.

2 Hawk (federal defendants); 1 and Wadley Medical Center (Wadley),

alleging that the defendants violated his Eighth Amendment rights

by failing to provide medical treatment and a safe environment. In

Witherspoon's complaint, he requested appointment of counsel. The

magistrate judge denied this request and stated that the questions

presented in this action were "rather routine" and "t hat the

applicable law [w as] well settled." Furthermore, the magistrate

judge found that Witherspoon was "able to articulate his claim,"

thus alleviating the need for assistance of counsel. 2

Wadley filed an answer to Witherspoon's complain t. The

federal d efendants, however, filed a motion to dismiss, or

alternatively, a motion for summary judgment. The magistrate judge

ordered Witherspoon to respond to the federal defendants' motion.

Witherspoon filed a handwritten letter, requesting the assistance

of appointed counsel in order to respond to the federal defendants'

motion. Additionally, Witherspoon made a third request for the

appointment of counsel in a formal motion drafted with the help of

a fellow inmate. Apparently, neither the magistrate nor district

judge reconsidered Witherspoon's potential need for appointment of3 The magis trate judge found that Witherspoon had failed to

demonstrate tha t the federal defendants acted with deliberate

indifference to a serious medical need or to his safety needs.

Thus, Witherspoon had failed to prove that the federal defendants

violated his Eighth Amendment rights. Additionally, the magistrate

judge found that the federal defendants were entitled to qualified

immunity due to Witherspoon's inability to allege a constitutional

deprivation.

4 The district court stated that it grant ed the "defendants'

motion to dismiss." However, the magistrate judge recommended that

the defendants' motion be granted as a motion for summary judgment.

The district court, prior to entering its final judgment order,

issued a memorandumorder adopting the magistrate's report and

recommendation and stated that "final judgment will be entered in

this case in accordance with the magistrate judge's

recommendations." Therefore, we construe the district court's

final judgment order as granting the federal defendants' motion for

summary judgment.

3 counsel at this juncture in the litigation; indeed, no specific

ruling on either of these last two requests appears in the record.

The magistrate judge reviewed the federal defendants' motion

to di smiss and alternative motion for summary judgment and

recommended granting the motion as a motion for summary judgment. 3

After the magistrate judge made his report an d recommendation to

the district court, Wadley filed its own motion for summary

judgment, which neither the magistrate judge nor the district court

appears to have ever reviewed.

The district court adopted the magistrate judge's report and

recommendation regarding the federal defendants' motion and issued

a separate final judgment in accordance with Federal Rule 58. In

the district court's final judgment , the court granted the

"defendants' motion to dismiss" 4 and purported to dismiss

Witherspoon's entire complaint with prejudice. See discussion

infra pp. ---- - ----. Witherspoon filed a notice of appeal from5 By statute federal courts may hear appeals from certain

interlocutory orders pursuant to 28 U.S.C. § 1292. Additionally,

courts have created certain narrow exceptions allowing appeals of

orders that are determined not to be final. These exceptions

include the collateral order exception, the death knell exception,

and pragmatic finality. S ee 15A C HARLES A. W RIGHT

, ET AL

. , F EDERAL

P RACTICE AND P ROCEDURE §§ 3911-3913 (2d ed. 1991).

4 the district court's entry of "Final Judgment."

II. Discussion

None of the parties to this action have raised the issue of

the existence of appellate jurisdiction; nevertheless, we are

obligated to raise the matter on our own motion. S ee United States

v. Garner, 749 F.2d 281, 284 (5th Cir.1985). In general, federal

appellate courts have jurisdiction pursuant to 28 U.S.C. § 1291 to

hear appeals from "final decisions," although in limited

circums tances, an appellate court's jurisdiction may extend to

reviewing nonfinal or interlocutory orders. 5

A final judgment is one that "ends t he litigation on the

merits and leaves nothing for the court to do but execute the

judgme nt." C oopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98

S.Ct. 2454, 2 457, 57 L.Ed.2d 351 (1978) (internal quotations and

citations omitted); see also Pan Eastern Exploration Co. v. Hufo

Oils, 798 F.2d 837, 838 (5th Cir.1986). Merely labeling a judgment

as final does not make it so. S ee Stillman v. Travelers Ins. Co.,

88 F.3d 911, 913 (11th Cir.19 96). The order must adjudicate the

r ights and liabilities of all parties properly before the court.

See Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1374

(5th Cir.1980). In circumstances in which a court order is

ambiguous as to what parties and claims are being disposed of and5

"the district court ... intend[ed] to effect a final dismissal of

a claim, we will construe its order accordingly, despite ambiguous

l anguage that might indicate otherwise." P icco v. Global Marine

Drilling Co., 900 F.2d 846, 849 n. 4 (5th Cir.1990); s ee also 15A

W RIGHT

, ET AL

., supra, § 3914.6. However, when the record clearly

indicates that the district court failed to adjudicate the rights

and liabilities of all parties, the order is not and ca nnot be

presumed to be final, irrespective of the district court's intent.

See Patchick v. Kensington Publishing Corp., 743 F.2d 675, 677 (9th

Cir.1984) (holding th at when the record indicates that a served

defendant remains a party to an action, the court cannot assume

finality).

In the present case, the district court issued an order

entitled "Final Judgment," apparently intending to dismiss

Witherspoon's case in its entirety. In the order, the court

granted the "defendan ts' motion to dismiss" and denied all other

outstanding motions. The face of the order appears unclear as to

whom the district court is re ferring when it states "defendants'

motion to dismiss." As stated above, the federal defendants filed

a motion to dismiss, or alternatively, a motion for summary

judgment and Wadley filed a separate motion for summary judgment.

However, after thoroughly reviewing the recor d, we find that the

district court only granted the federal defendants' motion.

First, the court granted " defendants' motion to dismiss,"

whereas Wadley never filed a motion to dismiss. The federal

defendants, however, file a motion titled, "Defendants' Motion to6

Dismiss or Alternatively, Motion for Summary Judgment." Thus, when

the district court used the phrase "defendants' motion to dismiss"

the court was simply referencing the name of the specific document

filed by the federal defendants. Second, the district court issued

its judgment in accordance with the magistrate judge's report and

recommendation wh ich dealt solely with the federal defendants'

motion. While the magistrate never specifically addressed for

which defendants he recommended granting summary judg ment, it is

clear after reviewing the record that the recommendation applied

only to the federal defendants. The record indicates that Wadley

was not represented in this action by the United States Attorney

who filed the motion reviewed by the magistrate judge, and that

Wadley did not file its separate motion for summary judgment until

after the magistrate judge issued his repo rt. Thus, Wadley's

motion was never before the magistrate judge.

Because w e find that the district court was solely granting

the federal defendants' motion for summary judgment in it s final

judgment order, Wadley's motion for summary judgment remained live

and undetermined. The record indicates that neither the district

court nor the magistrate judge e ver ruled on Wadley's motion.

Moreover, Wadley's motion asserted different groun ds than those

asserted by the federal defendants, and the m agistrate's report,

which the district court ad opted, did not address the grounds

asserted by Wadley. Further complicating matters, the district

judge stated in its final judgment order that "all motions by

either party not previously ruled on [were] de nied." Normally,7

this phrase is merely boilerplate language used by district courts

to insure the finality of their order. In the present case,

h owever, the district court actually achieved an inverse result.

Since the district court had not ruled on Wadley's motion, the

final judgment order effectively denied Wadley's motion for summary

judgment and left Wadley as a party to the action with

Witherspoon's cla ims against Wadley intact. Irrespective of the

district court's intent to dismiss Witherspoon's entire action and

issue a final judgment, we hold that Witherspoon's claims against

Wadley are still viable and that the district court's "Final

Judgment" order lacks finality.

We do, however, recognize that a dec ision failing to

adjudi cate the rights and liabilities of all parties, while not

technically f inal, can be certified as final pursuant to Federal

Rule of Civil Pro cedure 54(b). S ee Thompson v. Betts, 754 F.2d

1243, 1245 (5th Cir.1985). In certifying a decision as final for

appellate jurisdiction purpo ses, the district court must comply

with the requirements set out in Rule 54(b). S ee id. Until the

district court makes an express determination that no just reason

for delay exists and expressly directs entry of judgment, finality

will not attach to an order that disposes of some but not all of

the defendants. S ee F ED

. R. C IV

. P. 54(b); s ee also Kelly v. Lee's

Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir.1990)

(en banc) (interpreting Rule 54(b) as requiring the language of the

order ap pealed from to "reflect[ ] the district court's

unmistakeable intent to enter a partial final judgment under Rule8

54(b)"). Thus, when the district court fails to clearly indicate

that a judgment disposing of less than all parties was entered

pursuant to Rule 54(b), the judgment is not considered final. S ee

Thompson, 754 F.2d at 1245 (holding that absent a Rule 54(b)

certification, a partial disposition of a multi-party action is not

a final decision under § 1291); Brookens v. White, 795 F.2d 178,

179 (D.C.Cir.1986) (stating that it is "elementary that a grant of

summary judgment as to some parties in multi-party litigation does

not constitute a final order unless the requirements of

Fed.R.Civ.P. 54(b) are met").

In the instant case, there is no indication in the record that

the district court certified its final judgment order pursuant to

Rule 54(b) or that any of the parties eve r sought such a ruling.

See Thompson, 754 F.2d at 1245-46. Accordingly, the district

court's order can not be viewed as a Rule 54(b) judgment.

Furthermore, while certain other exceptions to the final judgment

rule may allow appellate courts to hear appeals from otherwise

interlocutory judgments, none of these exceptions apply to the

p resent case. The district court has left a substantial part of

the action intact and must dispose of Witherspoon's claims against

Wadley before the court's order may be deemed final and reviewable.

III. Conclusion

The district court attempted to enter a final judgment in the

prese nt case. However, the court neglected to adjudicate the

rights and liabilities of Wadley, a party pr operly before the

court. Because of the district court's failure to dispose of all9

parties to the litigation, we find that the "Final Judgment" order

lacks finality thus depriving this court of appellate jurisdiction

pursuant to 28 U.S.C. § 1291. For this reason, the appeal is

DISMISSED.