Berdella v. Delo

• Decision Date: 14 September 1992
• Docket Number: No. 91-2823,91-2823
• Citation: 972 F.2d 204
• Parties: Robert A. BERDELLA, Appellant, v. Paul K. DELO; Thelma Branson; and Frank J. Murphy, individually and in his official capacity, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 204

972 F.2d 204

23 Fed.R.Serv.3d 501

Robert A. BERDELLA, Appellant, v. Paul K. DELO; Thelma Branson; and Frank J. Murphy, individually and in his official capacity, Appellees.

No. 91-2823.

United States Court of Appeals,

Eighth Circuit.

Submitted April 16, 1992.

Decided Aug. 4, 1992.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

14, 1992.

Craig M. Schmid, St. Louis, Mo., argued, for appellant.

Greg A. Perry, Jefferson City, Mo. and Mary E. Kenney, argued, William A. Lynch, Kansas City, Mo., on the brief, for appellees.

Before JOHN R. GIBSON and BEAM, Circuit Judges, and ARNOLD, ^* District Judge.

BEAM, Circuit Judge.

On October 17, 1989, Robert A. Berdella, then, an inmate at the Potosi Correctional Center (PCC) in Missouri, ¹ filed a 42 U.S.C. § 1983 complaint against Paul Delo, the superintendent of the PCC, Thelma Branson, the mail room clerk at the PCC, and Frank J. Murphy, the court-appointed trustee of Berdella's estate. On July 11, 1990, the district court granted summary judgment in favor of Murphy based on the rule of res judicata. Nearly a year later, on June 26, 1991, the court granted summary judgment in favor of Delo and Branson based, in part, on qualified immunity. Berdella appeals these orders. We hold that Berdella's notice of appeal is insufficient as to the district court's July 11, 1990, order and affirm the court's June 26, 1991, order.

I. BACKGROUND

Berdella is currently serving a life sentence without the possibility of parole or probation. After Berdella's sentencing, Murphy was appointed trustee of his estate pursuant to Missouri state law. See Mo.Ann.Stat. ch. 460 (Vernon 1956 & Supp.1992). Disagreements soon arose between Berdella and Murphy over Murphy's management of the estate. In particular, Berdella objected to limits Murphy imposed on his spending.

In an attempt to circumvent Murphy's spending limits, Berdella began to send unstamped third-party correspondence to Murphy instead of stamping the correspondence himself and mailing it directly from the PCC. In response, Murphy twice wrote to the Missouri Department of Corrections (Department), asking the Department to restrict Berdella's mail to him. Under Department policies governing inmate mail then in effect, the Department honored written requests by persons outside the prison not to be sent mail from inmates. ² Although Murphy only sought to prevent Berdella from sending third-party correspondence to him, his letters to the Department were ambiguous and could easily be read as requesting that he not receive any mail from Berdella. ³ The Department interpreted Murphy's letters in this manner. ⁴

Pursuant to the Department's policy, Berdella was notified about Murphy's request not to receive mail from him. When Berdella later attempted to mail a letter to Murphy, Branson, who knew about the restriction on Berdella's mail, conferred with Delo. Following her discussion with Delo, Branson refused to post the letter and reminded Berdella in writing of Murphy's request. The written reminder also warned Berdella that further attempts to post mail to Murphy would result in disciplinary action.

As a result of the continuing dispute between Berdella and Murphy over the management of Berdella's estate, Berdella filed several suits against Murphy. In the present section 1983 action, Berdella alleged that Murphy wrongfully limited his prison spending and directed the prison staff not to post his mail in order to prevent him from serving legal documents on Murphy. Berdella also asserted claims against Delo and Branson, alleging that the restrictions on his mail to Murphy and the threat of disciplinary action violated his constitutional rights.

II. DISCUSSION

A. Murphy

Berdella asserts that the district court erred in granting Murphy summary judgment. Murphy counters that we need not reach the merits of this issue because Berdella failed to appeal the district court's July 11, 1990, order dismissing him. We agree. The Federal Rules of Appellate Procedure require a notice of appeal to "designate the judgment, order or part thereof appealed from." Fed.R.App.P. 3(c). Berdella's notice, however, only refers to the district court's June 26, 1991, order. When Berdella filed his notice of appeal, he also filed a document entitled "Motion for Appeal from Full Record." Although the motion indicates that Berdella wished to appeal the "full record," the motion refers in particular to the June 26, 1991, order and only that order. Murphy's name does not appear in the caption of either the notice of appeal or the motion for appeal, and the July 11, 1990, order was not attached to either document. ⁵

Berdella urges us to construe his notice of appeal liberally because he is a pro se litigant. He emphasizes that his motion for appeal states he is appealing from the "full record." Although we traditionally construe notices of appeal liberally, particularly those of pro se litigants, an intent to appeal the judgment in question must be apparent and there must be no prejudice to the adverse party. See, e.g., Huston v. Mitchell, 908 F.2d 275, 277 (8th Cir.1990); McAninch v. Traders Nat'l Bank of Kansas City, 779 F.2d 466, 467 n. 2 (8th Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2917, 91 L.Ed.2d 545 (1986); McGowne v. Challenge-Cook Bros., Inc., 672 F.2d 652, 659 (8th Cir.1982). In McAninch, for example, the appellants' notice of appeal failed to list an order granting summary judgment to certain defendants and another order dismissing one of the plaintiffs. We held that intent to appeal these orders was apparent from the procedural history of the case and the inclusion of the orders on the appeal information form. See McAninch, 779 F.2d at 467 n. 2.

We do not believe that Berdella's intent to appeal the district court's July 11, 1990, order is apparent from either his notice of appeal or the procedural history of the case. The July 11, 1990, order and the June 26, 1991, order addressed distinct and severable issues. An appeal of one order, therefore, would not inherently imply a desire to appeal the other. Even if we consider Berdella's motion for appeal in evaluating his notice of appeal, the notice still does not evince an intent to appeal the July 11, 1990, order. Berdella cites no authority for the proposition that the words "full record" sufficiently indicate an intent to appeal any and every order issued by the district court in the course of a suit, and we refuse to so hold. Berdella also ignores the fact that his motion for appeal, like his notice of appeal, specifically states that he is appealing the June 26, 1991, order and contains no reference to the July 11, 1990, order. ⁶

In addition, the procedural history of this case lends little support to Berdella's assertion that his intent to appeal the July 11, 1990, order was apparent. Although Berdella could not have challenged the order before entry of final judgment unless he received permission for an interlocutory appeal, this fact alone is not dispositive. At the time Berdella filed his notice of appeal, he was also asserting similar claims against Murphy in two separate actions in Missouri state court. See Berdella v. Murphy, No. CV91-5199 (Jackson County, Mo.Cir.Ct.); Berdella v. Murphy, No. CV191-579CC (Cole County, Mo.Cir.Ct.). Given the existence of these state actions, Berdella's failure to include the July 11, 1990, order in his notice of appeal is demonstrative, if anything, of an intent to abandon the federal forum and pursue his claims against Murphy in state court.

Berdella's omission of any reference to the district court's July 11, 1990, order in his notice of appeal is more than a mere technical deficiency. Berdella has failed to comply with Rule 3(c) and, as such, we lack jurisdiction to consider his argument that the district court erred in granting Murphy summary judgment. See Yoder v. Nutrena Mills, Inc., 294 F.2d 505, 506 n. 1 (8th Cir.1961); cf. Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988) (court of appeals lacked jurisdiction over party in class action where party's name inadvertently omitted from notice of appeal).

B. Delo and Branson

Berdella also contends that the district court erred in granting Delo and Branson summary judgment. On appeal, Berdella essentially argues that Delo and Branson interfered with his right to correspond with non-inmates in violation of the First Amendment and denied him meaningful access to the courts in violation of the First and Fourteenth Amendments. ⁷ Delo and Branson respond in part by asserting that Berdella has failed to set forth facts showing a constitutional violation occurred. We agree.

In reviewing a district court's grant of summary judgment we apply the same standard as the district court. E.g., Meyer v. Barnes, 867 F.2d 464, 466 (8th Cir.), cert. denied, 493 U.S. 825, 110 S.Ct. 86, 107 L.Ed.2d 51 (1989). Summary judgment is proper where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The nonmoving party "may not rest upon the mere allegations or denials of [its] pleadings, but ... must set forth specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986).

Berdella initially claims that the Department's policy honoring a person's request not to receive mail from an inmate violates his First Amendment right to correspond with non-inmates. We disagree. The Supreme Court has held that restrictions on outgoing inmate mail must be generally necessary to protect a legitimate government interest. See Procunier v. Martinez, 416 U.S. 396, 414, 94 S.Ct. 1800, 1811-12, 40 L.Ed.2d 224 (1974), overruled in part by Thornburgh v. Abbott, 490 U.S. 401, 411-14, 109 S.Ct. 1874, 1880-82, 104 L.Ed.2d 459 (1989) (...