Tarlton v. Dill

• Decision Date: 04 March 1974
• Docket Number: No. 73-3451. Summary Calendar.,73-3451. Summary Calendar.
• Citation: 488 F.2d 973
• Parties: John Brent TARLTON, Jr., Plaintiff-Appellant, v. Homer DILL, Lester Wilkerson, Keith Collier, George Killiam and Herb Gnepper, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

488 F.2d 973 (1974)

John Brent TARLTON, Jr., Plaintiff-Appellant, v. Homer DILL, Lester Wilkerson, Keith Collier, George Killiam and Herb Gnepper, Defendants-Appellees.

No. 73-3451. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 23, 1974.

Rehearing Denied March 4, 1974.

John Brent Tarlton, Jr., pro se.

Robert B. Wilson, Asst. U.S. Atty., Lubbock, Tex., for H. Gnepper.

R. W. Webb, Snyder, Tex., for Charlsie M. Tarlton.

George R. Killam, Jr., County Atty., Snyder, Tex., W. E. Smith, Asst. U.S. Atty.; Ft. Worth, Tex., Jack Boone, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.

Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

PER CURIAM:

John Brent Tarlton, Jr., a federal prisoner, filed a Civil Rights action for damages against several named individuals. The district court granted Defendant Herb Gnepper's motion for summary judgment, and Tarlton has taken this appeal from that ruling. Summary judgment motions on behalf of several other defendants were denied, and it is clear that except as to Gnepper the action is still pending below.

Since summary judgment was granted in favor of only one of the several defendants, it is not a final judgment appealable of right under 28 U.S.C. Sec. 1291. Nor has there been any attempt to comply with the requirements of 28 U.S.C. Sec 1292(b) governing interlocutory appeals, or an express determination by the district court that there is no just reason for delay and direction of entry of final judgment in favor of Gnepper. See Rule 54(b), F.R.Civ.P. Therefore the judgment appealed from lacks the requisite finality to be appealable, and the appeal must be and is hereby dismissed for want of jurisdiction. McCormick v. Landrieu, 5 Cir. 1972, 469 F.2d 673; Ratner v. Scientific Resources Corp., 5 Cir. 1971, 462 F.2d 616; Bailey v. Rowan Drilling Co., Inc., 5 Cir. 1971, 441 F.2d 57.

Appeal dismissed.

* Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.