Longmire v. Guste

• Decision Date: 24 January 1991
• Docket Number: No. 89-3595,89-3595
• Citation: 921 F.2d 620
• Parties: Nolan LONGMIRE, Plaintiff-Appellant, v. William GUSTE, Jr., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 620

921 F.2d 620

18 Fed.R.Serv.3d 1258

Nolan LONGMIRE, Plaintiff-Appellant, v. William GUSTE, Jr., et al., Defendants-Appellees.

No. 89-3595

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Jan. 24, 1991.

Nolan Longmire, pro se.

Joseph E. Kopsa, Asst. Atty. Gen., William Guste, Jr., Atty. Gen., Baton Rouge, for defendants-appellees.

Appeals from the United States District Court for the Middle District of Louisiana.

Before KING, GARWOOD and DUHE, Circuit Judges.

PER CURIAM:

Nolan Longmire appeals the dismissal of his 42 U.S.C. Sec. 1983 claim against several Louisiana state officials. The district court granted the state officials' motion for summary judgment for the reasons set forth in a magistrate's report dated July 12, 1989. Appellant claims that the district court erred, inter alia, by 1) failing to make a de novo review of the magistrate's report; 2) granting defendant's motion for summary judgment when there are material factual issues in dispute; 3) finding that La.Rev.Stat.Ann. Sec. 15:875 (West Supp.1990) is constitutional on its face and as applied to appellant; 4) failing to appoint counsel; and 5) declining to rule on appellant's state claims. Finding that the district court erred in granting summary judgment, we reverse and remand for proceedings consistent with this opinion.

I.

Appellant Nolan Longmire (Longmire), a prisoner at the Louisiana State Penitentiary, filed this suit pursuant to 42 U.S.C. Sec. 1983, alleging that his rights to due process and equal protection were violated by requiring him to pay, in part, restitution for the value of state property damaged and for the cost of medical attention required following Longmire's act of self-mutiliation. Longmire contended that the statute authorizing the restitution, La.Rev.Stat.Ann. Sec. 15:875 (West Supp.1990), is unconstitutional on its face and as applied to him.

Longmire names as defendants (1) William J. Guste, Jr., the Attorney General for the State of Louisiana; (2) Bruce N. Lynn, the Secretary of the Louisiana Department of Public Safety and Corrections (LDPSC); (3) John P. Whitley, the Warden of the Louisiana State Penitentiary (LSP); and (4) Annette Viator, the Chief Legal Counsel. ¹ The district court stayed the proceedings pending exhaustion of administrative remedies. Following purported exhaustion, the district court reinstated the suit and assigned it to a U.S. Magistrate.

Longmire filed a motion for summary judgment, as did the defendants. Oral argument was held to consider these requests. The U.S. Magistrate recommended that the defendants' motion for summary judgment be granted and Longmire's motion be denied. The magistrate concluded that the statute did not deprive Longmire of due process and refused to entertain the pendent claim that the statute violated the Louisiana Constitution. Longmire then filed objections to the report. The district court, for the reasons set forth in the magistrate's report, ordered that the action be dismissed with prejudice as to the federal claims and dismissed without prejudice as to the state law claims. The district court failed to make separate findings on any part of the challenged report. Longmire filed a timely notice of appeal. He also requested that counsel be appointed for the appeal.

The district court found that the action was frivolous and denied leave to appeal as a pauper. This court granted Longmire's motion to proceed in forma pauperis, but denied Longmire's motion for appointment of counsel.

II.

As a threshold matter, we address the appellees' jurisdictional challenge. Appellees, the Louisiana state officials, allege that Longmire failed to perfect an appeal as to three of the officials because Longmire's notice of appeal specifically named only Attorney General William Guste, Jr. The notice of appeal used the words "et al." to include the other three officials. It is the appellees' view that this court lacks jurisdiction over the appeal as to these three appellees. In support of this contention, appellees cite Fed.R.App.Proc. 3(c), Torres v. Oakland Scavenger Company, 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), and Pope v. Mississippi Real Estate Commission, 872 F.2d 127 (5th Cir.1989). This contention has no merit because appellees misinterpret each of these cited materials.

Fed.R.App.Proc. 3(c) states:

The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.... An appeal shall not be dismissed for informality of form or title of the notice of appeal.

The Supreme Court in Torres held that this was a jurisdictional rule, deviation from which would deny a court of appeals jurisdiction over that part of petitioner's appeal not covered by the notice of appeal. In Torres, the Court specifically found that the use of "et al." to describe the appellants taking appeal was insufficient to indicate an unnamed appellant's intention to appeal. 108 S.Ct. at 2409. In doing so, the court noted that "construing Rule 3(c) as a jurisdictional prerequisite leads to a harsh result in this case, but we are convinced that the harshness of our construction is 'imposed by the legislature and not by the judicial process.' " Id. (citation omitted). No such harshness is required in the case at bar.

The Court in Torres construed the phrase "[t]he notice of appeal shall specify the party or parties taking the appeal ..." to be a jurisdictional prerequisite. ² The jurisdictional prerequisite of Fed.R.App.Proc. 3(c) only requires naming with specificity the appellants taking the appeal and not the appellees against whom the appeal is being taken. See Streetman v. Jordan, 918 F.2d 555 (5th Cir.1990); Chathas v. Smith, 848 F.2d 93, 94 (7th Cir.1988) (omission of appellee's name harmless error); Battle v. District of Columbia, 854 F.2d 1448, 1450 (D.C.Cir.1988) ("While Rule 3(c) requires that appellants be identified it does not require that appellees be identified ... therefore, when an appellee is not identified .... the Court has jurisdiction over the appeal") (dicta)

Having determined that the use of "et al." is not a jurisdictional infirmity in a notice of appeal, we turn to the secondary concern in Torres--notice to the opposition and to the court of the identity of the parties on appeal. 108 S.Ct. at 2409. This concern is satisfied by Fed.R.App.Proc. 3(d) which states: "The clerk of the district court shall serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record of each party other than the appellant...." By sending notice to each of the parties in a suit other than the party taking the appeal, each of these parties becomes aware of the appellant's intent to appeal. If the rules anticipated that only those appellees named would be included in the appeal, only those appellees would require notice. In this case, all four of the defendants were represented by staff attorneys in the Louisiana Department of Justice. The notice of appeal was sent to these attorneys. There can be no contention that any of the appellees was not on notice as to Longmire's appeal.

Based upon the foregoing analysis, we hold that the jurisdictional requirement of Torres does not require that appellees' names be specified in a notice of appeal. Rather, this requirement only applies to the names of appellants.

III.

We now turn to Longmire's challenges to the district court's order granting the appellees' motion for summary judgment.

A.

Longmire contends that the district court erred by not making a de novo review of the magistrate's report and a determination of the merit of Longmire's specific objections to the report.

A party is entitled to a de novo review of a magistrate's finding and recommendations only if objections are made to the findings. Nettles v. Wainwright, 677 F.2d 404, 409-10 (5th Cir.1982) (en banc) (citing 28 U.S.C. Sec. 636(b)(1)(B)). Under 28 U.S.C. Sec. 636(b)(1), "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection was made." Longmire filed written objections to the magistrate's report and was entitled to a de novo review by an Article III judge as to those issues to which an objection is made. See U.S. v. Wilson, 864 F.2d 1219, 1221-22 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989). Longmire alleges that the district court erred in the present action by failing to conduct a de novo review of the magistrate's findings to which objections were timely made.

The district court's order stated that "[f]or the reasons set forth in the Magistrate's Report to which an objection was filed; IT IS ORDERED that ... the defendant's motion for summary judgment be granted." We cannot say that this language indicates a failure to make a de novo review of the magistrate's report, the record, and plaintiff's objections. In granting a motion for summary judgment, the district court would be required to engage in exactly the same method of analysis as employed by the magistrate. We assume that the district court did its statutorily commanded duty in the absence of evidence to the contrary. Therefore, we decline to reverse the district court on these grounds.

B.

Longmire next challenges the holding that La.Rev.Stat.Ann. Sec. 15:875 is facially constitutional.

The 14th Amendment to the United States Constitution protects against deprivations of life, liberty and property without due process of law. There is no doubt that Longmire was deprived of property--funds in his prison account. ³ The statutory scheme of Sec. 15:875 provides that "[t]he [deprivation] determination by the department shall be by disciplinary proceedings in accordance with the rules and regulations of the department." La.Rev.Stat.Ann. Sec. 15:875.C. (West Supp.1990). These...