Bonner v. Perry, No. 08-5562.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Karen Nelson Moore
• Citation: 564 F.3d 424
• Parties: Sha'rewa BONNER, Plaintiff-Appellant, v. David PERRY, individually and in his official capacity as an employee of the Department of Probation and Parole, Defendant, Commonwealth of Kentucky Department of Corrections, Defendant-Appellee.
• Docket Number: No. 08-5562.
• Decision Date: 20 April 2009

564 F.3d 424 Sha'rewa BONNER, Plaintiff-Appellant,
v.
David PERRY, individually and in his official capacity as an employee of the Department of Probation and Parole, Defendant,
Commonwealth of Kentucky Department of Corrections, Defendant-Appellee. No. 08-5562. United States Court of Appeals, Sixth Circuit. Argued: March 12, 2009. Decided and Filed: April 20, 2009.

[564 F.3d 425]

ARGUED: Kirsten R. Daniel, Oldfather Law Firm, Louisville, Kentucky, for Appellant. Brenn Oliver Combs, Justice and Public Safety Cabinet, Frankfort, Kentucky, for Appellee. ON BRIEF: Ann B. Oldfather, Vicki Lynn Buba, Oldfather Law Firm, Louisville, Kentucky, for Appellant. Brenn Oliver Combs, Justice and Public Safety Cabinet, Frankfort, Kentucky, for Appellee.

Before: MOORE and WHITE, Circuit Judges; OLIVER, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant Sha'rewa Bonner ("Bonner") appeals the district court's dismissal of her claim, brought under 42 U.S.C. § 1983, against the Commonwealth of Kentucky Department of Corrections ("DOC").¹ Citing our decision in Collard

564 F.3d 426

v. Kentucky Board of Nursing, 896 F.2d 179 (6th Cir.1990), the district court applied a one-year statute of limitations to Bonner's claim and concluded that the claim was filed outside the limitations period. Bonner's sole contention on appeal is that Collard was wrongly decided, and thus that we should overrule the decision. Because we do not have the power to overrule an earlier published Sixth Circuit decision under the instant circumstances, we AFFIRM the district court's dismissal.

I. FACTS AND PROCEDURE

The facts of this case are undisputed for the purposes of this stage of the litigation. David Perry ("Perry") was a probation officer for DOC who supervised Bonner's probation from 1999 until at least May 2004. From December 2003 until May 2004, "Perry routinely forced Bonner to engage in sexual acts with him," Record on Appeal ("ROA") at 9 (Compl. ¶ 26), and threatened Bonner that he would have her probation revoked if Bonner did not comply with Perry's demands. Eventually, Bonner reported the abuse to the police, who investigated and "discovered that Perry had similarly sexually abused, intimidated and threatened at least six women under his supervision from 1999 until June 2004, in his capacity as a probation officer working for [] DOC." ROA at 10 (Compl. ¶ 33). Perry admitted the alleged abuse, pleaded guilty to criminal charges stemming from these incidents, and received a prison term of five years.

Bonner filed this action against both Perry and DOC in the United States District Court for the Western District of Kentucky on December 3, 2007, asserting that the defendants violated 42 U.S.C. § 1983 and various state laws. DOC filed a motion to dismiss on December 20, 2007, alleging that a one-year statute of limitations applied to § 1983 actions arising in Kentucky, and that Bonner had filed her action outside the limitations period. The district court concluded that our decision in Collard mandated that a one-year statute of limitations applied in this case. Because Bonner alleged that DOC "violated her civil rights from December 2003 to May 2004," the district court concluded that Bonner's action was filed "well outside the one-year limitation period," and granted DOC's motion to dismiss. ROA at 47 (03/20/08 Dist. Ct. Op. and Order) (entered on district court docket sheet 03/24/08). Bonner filed a notice of appeal regarding this grant of summary judgment to DOC on April 21, 2008. This is the only notice of appeal that Bonner has filed in this action. Perry subsequently filed a motion to dismiss, which the district court granted on May 16, 2008. This order was entered on the district court docket sheet on May 19, 2008; however, a separate entry of judgment was never filed.

II. ANALYSIS

A. Appellate Jurisdiction

Although the parties did not raise the issue of appellate jurisdiction in their briefs, "we are under an independent obligation to police our own jurisdiction," and thus we can raise the issue of jurisdiction sua sponte. S.E.C. v. Basic Energy & Affiliated Res., Inc., 273 F.3d 657, 665 (6th Cir.2001).² With certain limited exceptions

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not applicable here, we have jurisdiction only over appeals from final decisions of a district court. 28 U.S.C. § 1291. Moreover, "[a]n appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4" of the Federal Rules of Appellate Procedure. Fed. R.App. P. 3(a)(1).

A notice of appeal must be filed "within 30 days after the judgment or order appealed from is entered." Fed. R.App. P. 4(a)(1)(A). A judgment not based on Federal Rules of Civil Procedure 50(b), 52(b), 54, 59, or 60 is not entered until either (1) the judgment "is set out in a separate document" that is entered on the district court docket sheet; or (2) "150 days have run from the entry [of the judgment or order] in the civil docket." Fed.R.Civ.P. 58(c)(2); see also Fed.R.App. P. 4(a)(7) (defining entry of judgment for Fed. R.App. P. 4(a) purposes). However, "[a] notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry." Fed. R.App. P. 4(a)(2).

A grant of partial summary judgment that does not dispose of all parties and all claims is generally not immediately appealable unless the district court issues a Fed.R.Civ.P. 54(b) certificate. See Akers v. Alvey, 338 F.3d 491, 495 (6th Cir.2003) (noting that "a partial grant of summary judgment is not ordinarily appealable" absent Rule 54(b) certification); Levy v. Yenkin-Majestic Paint Corp., 893 F.2d 1334 (6th Cir.1990) (unpublished order) ("In the absence of certification as a final judgment under Fed.R.Civ.P. 54(b), an order disposing of fewer than all parties or claims in an action is not a final, appealable order." (citing William B. Tanner Co. v. United States, 575 F.2d 101, 102 (6th Cir.1978))); see also EEOC v. Nw. Airlines, Inc., 188 F.3d 695, 700 (6th Cir.1999) (noting that "[t]he district court must certify that a partial summary judgment may be appealed immediately"). A grant of partial summary judgment merges into a final judgment and can be reviewed upon appeal of the final judgment. 15B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 2d § 3914.28 (2d ed. 1991 & 2008 Supp.). Moreover, a grant of partial summary judgment becomes a final judgment when a district court thereafter disposes of all remaining claims and parties. Porter v. Williams, 436 F.3d 917, 920 (8th Cir.2006) ("[A grant of] partial summary judgment becomes a final judgment once the remaining parts of the case are dismissed or otherwise resolved."); J.D. Pharm. Distribs., Inc. v. Save-On Drugs & Cosmetics Corp., 893 F.2d 1201, 1208 (11th Cir.1990) (concluding that a grant of partial summary judgment became reviewable as a final order because the one named defendant that was not affected by the grant was later dismissed).

The instant appeal raises several jurisdictional issues. At the time that Bonner filed her notice of appeal regarding DOC, the grant of partial summary judgment in favor of DOC was not immediately appealable; Perry was still a party to the action at that time, there was no final

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judgment in the action, and no Fed. R.Civ.P. 54(b) order existed. Therefore, the notice of appeal filed on April 21, 2008 was premature. However, the district court entered an order dismissing the remaining party (Perry) on May 19, 2008. The initial grant of partial summary judgment in favor of DOC became reviewable as a final judgment at that time. Porter, 436 F.3d at 920. Nevertheless, the district court docket sheet reveals that the district court never complied with the separate-document requirement of Fed.R.Civ.P. 58(a) by entering a final judgment in the action. Thus, for purposes of appeal, the final judgment was not entered until 150 days after the entry of the order dismissing Perry—October 16, 2008. See Fed. R.Civ.P. 58(c). The notice of appeal from the final judgment was then required to be filed not more than 30 days later. Therefore, it is clear that the window in which Bonner could file a notice of appeal from the final judgment is now closed. Bonner has not filed a new notice of appeal from the final judgment. Thus, we have jurisdiction to hear this appeal only if Bonner's premature notice of appeal regarding the order of...