* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30098

Summary Calendar

LEONARD CARTER

Plaintiff-Appellee

v.

SHIRLEY COODY, Assistant Warden LSP; Jimmy Smith, Major; BURL CAIN,

Warden

Defendants-Appellants

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:07-CV-444

Before JOLLY, BENAVIDES and HAYNES, Circuit Judges.

PER CURIAM:*

Leonard Carter, Louisiana prisoner # 133032, filed a civil rights action

under 42 U.S.C. § 1983 against the defendants asserting that he was subjected

to cruel and unusual punishment while being restrained and that the prison

regulation authorizing the methods of restraint is unconstitutional. The

defendants moved for summary judgment based on Carter’s failure to exhaust

his administrative remedies. The defendants asserted that Carter had not

United States Court of Appeals

Fifth Circuit

F I L E D

October 20, 2008

Charles R. Fulbruge III

Clerk
No. 08-30098

2

proceeded to the second step of the prison administrative remedy proceedings.

The district court denied summary judgment because there was a genuine issue

of material fact whether Carter had proceeded to the second step of the prison

administrative remedy proceedings based on the information contained in

Carter’s verified complaint. The defendants appeal the denial of the motion for

summary judgment.

Federal appellate courts have jurisdiction over appeals only from (1) final

orders, pursuant to 28 U.S.C. § 1291; (2) orders that are deemed final due to a

jurisprudential exception, such as the collateral order doctrine; (3) certain

specific types of interlocutory appeals, such as those where injunctive relief is

involved pursuant to 28 U.S.C. § 1292; and (4) interlocutory orders that are

properly certified for appeal by the district court pursuant to FED. R. CIV.

P. 54(b) or 28 U.S.C. § 1292(b). See Dardar v. Lafourche Realty Co., 849 F.2d

955, 957 (5th Cir. 1988). The collateral order doctrine establishes that certain

nonfinal decisions of the district court are effectively final even if they do not

dispose ofthe litigation. Brinar v. Williamson, 245F.3d 515, 517 (5th Cir. 2001).

The doctrine directs that “an order is appealable, notwithstanding the absence

of a final judgment, if it is conclusive, resolves important questions that are

separate from the merits, and is effectively unreviewable on appeal from final

judgment.” Id. Nothing in either side’s brief suggests such a situation here.

In our court’s February 6, 2008, briefing notice, the parties were

specifically requested to address “whether the orders denying the motions to

dismiss and for summary judgment . . . from which appeal is taken, is [sic]

appealable at this stage of the litigation.” In their brief to this court, the

defendants cite only 28 U.S.C. §1291, dealing with final judgments, as the basis

for jurisdiction. An order denying a motion to dismiss or for summary judgment

is not a final order or judgment.

The defendants have not demonstrated grounds for jurisdiction in this

court. The appeal is DISMISSED for lack of jurisdiction.