43 F.3d 374 (8th Cir. 1994), 94-1629, White v. Nix

Docket Nº:94-1629.
Citation:43 F.3d 374
Party Name:Sherman WHITE, Appellee, v. Crispus NIX; Rob Glaser; John Emmett; James Burton; Unknown/Unnamed Defendants, Sued as Two Unknown BCI Agents, Appellants.
Case Date:December 21, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 374

43 F.3d 374 (8th Cir. 1994)

Sherman WHITE, Appellee,


Crispus NIX; Rob Glaser; John Emmett; James Burton;

Unknown/Unnamed Defendants, Sued as Two Unknown

BCI Agents, Appellants.

No. 94-1629.

United States Court of Appeals, Eighth Circuit

December 21, 1994

Submitted Oct. 11, 1994.

Page 375

R. Andrew Humphrey, Asst. Atty. Gen., Des Moines, IA, argued, for appellant.

Patrick Ingram, Iowa City, IA, argued, for appellee.


MAGILL, Circuit Judge.

Crispus Nix, a former warden of the Iowa State Penitentiary, and other Iowa state officials appeal an order of the district court requiring them to produce, under protective order, confidential investigative files concerning a prison assault to counsel for Sherman White, the plaintiff in this action and a subject of that investigation. We dismiss this appeal for lack of jurisdiction.


Inmate Sherman White was convicted of several violent crimes and was sentenced to life imprisonment. At all relevant times, White has been confined at the Iowa State Penitentiary (ISP). On March 16, 1992, several inmates were involved in an assault at the ISP. Prison officials believed the assault to be drug-related. Three days later, White was placed in non-punitive investigative segregation after he turned over illegal drugs to prison officials. Prison officials investigated both incidents.

White remained in segregation until October 11, 1992. On October 29, 1992, White filed this Sec. 1983 action, alleging that he was placed in segregation as punishment for his refusal to reveal privileged attorney/client communications. In connection with this suit, White sought discovery of files created by prison officials while investigating White's possible involvement in the assault. These files were created for use in any future criminal prosecutions or disciplinary actions that

Page 376

might arise from the assault. To date, no disciplinary action or criminal prosecution has been initiated, although the investigation remains open.

The defendants provided the files for in camera inspection, but resisted production of the files, arguing that: (1) the files were created in anticipation of litigation, and were therefore protected by the work product doctrine; and (2) the files were immune to discovery because the disclosure of the files would undermine prison security. A magistrate judge ordered the defendants to produce the files to White's counsel, subject to a protective order. The district court affirmed the magistrate judge's order. Defendants moved for certification of an interlocutory appeal, and on February 28, 1994, the district court entered an order stating, in relevant part:

Pursuant to 28 U.S.C. Sec. 1292(b), this [District] Court should grant such an application [for certification of appeal] when 'there is a substantial ground for difference of opinion and [ ] an immediate appeal from the order may materially advance the ultimate termination of the litigation.'

This Court is satisfied that the issues involved [in the discovery dispute] create 'a substantial ground for difference of opinion.' IT IS THEREFORE ORDERED that [defendants'] request for certification to appeal is GRANTED.


This interlocutory appeal comes to us by certification under 28 U.S.C. Sec. 1292(b). 1 The requirements of Sec. 1292(b) are jurisdictional. Biggers v. Bankers Bond Co., 171 F.Supp. 94, 95 (W.D.Ky.1959). Although "the parties did not raise any jurisdictional issues[, t]his court is obligated to raise such jurisdictional issues if it perceives any." Lewis v. United States Farmers Home Admin., 992 F.2d 767, 771 (8th Cir.1993). Our jurisdictional analysis is guided by the policy embodied in the final judgment rule:

It has, of course, long been the policy of the courts to discourage piece-meal appeals because most often such appeals result in additional burdens on both the court and the litigants. Permission to allow interlocutory appeals should thus be granted sparingly and with discrimination.

Control Data Corp. v. International Business Machs. Corp., 421 F.2d 323, 325 (8th Cir.1970); accord Paschall v. Kansas City Star Co., 605 F.2d 403, 406 (8th Cir.1979); Biggers, 171 F.Supp. at 95.

In accordance with this policy, Sec. 1292(b) "should and will be used only in exceptional cases where a decision on...

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