Huston v. Mitchell, 89-1719EM

• Decision Date: 14 August 1990
• Docket Number: No. 89-1719EM,89-1719EM
• Citation: 908 F.2d 275
• Parties: Danny BayLis HUSTON, Appellant, v. Cranston J. MITCHELL, Chairman Missouri Dept. of Probation and Parole; Jeanne Schneider, Mo. Sop. Psychologist; Members of Parole Board, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 275

908 F.2d 275

17 Fed.R.Serv.3d 703

Danny BayLis HUSTON, Appellant, v. Cranston J. MITCHELL, Chairman Missouri Dept. of Probation and Parole; Jeanne Schneider, Mo. Sop Psychologist; Members of Parole Board, Appellees.

No. 89-1719EM.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 16, 1990.

Decided July 6, 1990.

Rehearing and Rehearing En Banc Denied Aug. 14, 1990.

Kurt S. Odenwald, St. Louis, Mo., for appellant.

Paul M. Rauschenbach, Jefferson City, Mo., for appellees.

Before McMILLIAN and FAGG, Circuit Judges, and STROM, ^* District Judge.

FAGG, Circuit Judge.

Danny BayLis Huston, a Missouri inmate, brings this 42 U.S.C. Sec. 1983 action. Huston asks us to overturn the district court's rulings in two cases: Huston v. Johnmeyer, No. N86-0039-C (E.D.Mo. Jan. 20, 1989), and Huston v. Mitchell, No. N88-0040-C (E.D.Mo. Apr. 13, 1989). We dismiss Johnmeyer for lack of jurisdiction and affirm the district court's dismissal of Mitchell.

We include a short description of the two district court cases to explain our decision. Huston originally brought suit against the prison's parole board, his parole officer, and the supervisors at the prison's sexual offenders program in Huston v. Johnmeyer. Huston claimed the prison staff refused to allow him to participate in the sexual offenders program and unlawfully denied him parole. The district court appointed counsel for Huston, and the parties settled the dispute. The terms of the settlement agreement permitted Huston to enroll in the sexual offenders program and provided him an early parole review when he completed the program.

Huston later failed the sexual offenders program. He sought relief from the district court claiming the prison staff breached the settlement agreement by refusing him "meaningful access" to the sexual offenders program and continuing to deny him parole. At an evidentiary hearing, a prison psychologist testified about Huston's inadequate performance in the sexual offenders program, and the district court decided there was no breach of the settlement agreement because the court "[could not] find ... that [Huston] successfully completed the [sexual offenders] program." Huston did not file a notice of appeal in Johnmeyer.

While the Johnmeyer suit was pending, Huston filed a second suit pro se in Huston v. Mitchell claiming he was denied parole review on three additional presumptive parole dates. The district court consolidated Mitchell and Johnmeyer, see Fed.R.Civ.P. 42(a), but Huston's attorney did not receive a copy of the consolidation order. After Johnmeyer was decided, the district court dismissed Mitchell as moot. Huston filed a timely notice of appeal in Mitchell.

Huston first claims the district court committed error in Johnmeyer by ruling there was no breach of the settlement agreement. We do not reach his claim. This court does not have jurisdiction over a civil case unless a notice of appeal is filed in compliance with Fed.R.App.P. 3 and 4(a), and Huston failed to file a notice of appeal in Johnmeyer. Huston asserts, however, that because Mitchell and Johnmeyer were consolidated, his appeal in Mitchell permits this court to review Johnmeyer as well. We reject this assertion because the district court's consolidation of Huston's cases did not completely merge the cases into a single action. See Miller v. United States Postal Serv., 729 F.2d 1033, 1036 (5th Cir.1984). Huston's two cases retained separate identities and thus required separate notices of appeal. Id.

Huston also asserts he intended to appeal both cases when he filed a single notice of appeal. We may construe Huston's single notice of appeal to encompass both consolidated cases if "[Huston's] 'intent [to appeal both cases] is apparent and there is no prejudice to the adverse part[ies].' " McAninch v. Traders Nat'l Bank, 779 F.2d 466, 467 n. 2 (8th Cir.1985) (quoting Simpson v. Norwesco, Inc., 583 F.2d 1007, 1009 n. 2 (8th Cir.1978)), cert. denied, 476 U.S. 1182, 106 S.Ct. 2917, 91 L.Ed.2d 545 (1986). It is clear from the record, however, that Huston abandoned his claims in Johnmeyer. In his motion for relief from judgment in Mitchell, Huston "pray[ed] this District Court ... grant this cause separation...