*1 idеntify basis that the district court process. The to of due in a violation resulted Supreme employ depart to downward properly could “[t]he that court reasoned sentencing, generally guideline ranges, en- find no need while from their we on decisions enhance- dorsing permit that sentence rules to the district court further to remand proved According- on conduct ments to be based consideration their sentences. support a con- degree required to the same ly, we affirm the Fenners’ convictions viction, against permit- ... cautioned have sentences.4 ‘tail enhancement to be the ting a sentence AFFIRMED. of- wags ” dog the of the substantive which McMillan, 477 (quoting Id. at 176 fense.’ 2411). at The Lombard S.Ct. U.S. application of the that
court determined 2K2.1(e)(l)(B) augment
§ reference to cross from guideline range 262-327
the defendant’s mandatory life imprisonment to a
months punishment in de-
sentence so increased wagged the enhancement greе and kind that PLAINTIFFS, HAMILTON dog offense. See id. of the firearms Plaintiffs-Appellants, 177.
Lombard, however, presents a different v. here, presented and we situation than that PLAINTIFFS, WILLIAMS presented in Lom- resolve the issue need not Plaintiffs-Appellees, no that the Fenners faced bard conclude application in the process violation due 2K2.1(e)(l)(B) § reference. Because cross FOTI, Jr., Sheriff; City of New Charles C. imprison- statutory maximum term of Louisiana; Orleans; Richard State of subjected Fenners were ment which the Foster, Stalder, Secretary; Mike Gover impris- life far than the sentence of was less (64) Louisiana; nor, Sixty-Four State exposed, the onment to which Lombard was Sheriffs, Defendants-Appel Louisiana 2K2.1(c)(l)(B) § ref- cross application of lees. in crimi- implicate increase erence did No. 97-30486. culpability degree similar to nal kind Lombard, which the enhancement at issue Appeals, United States Court dispositive. there Conse- the court found Fifth Circuit. per- find Lombard to be quently, we do not July 1998. suasive. July As Revised 1998.
III. sum, reject argument In we Fenners’ 2K2.1(c)(l)(B) § application right to due reference violated their
cross court
process the district and hence depart down-
must have been authorized to resulting guideline range on
ward from failed the Fenners have
that basis.3 Because express concerning view this issue. Almenda argument we no See no 3. The Fenners raised - at-, rez-Tones, proof that must be satisfied S.Ct. at 1233. the standard U.S. resulting impose from the enhancement order to 2K2.1(c)(1)(B) § cross reference consistent argu- carefully We considered the other 4. have process. is no doubt the with due This omission relating their Fenners ments raised finding beyond a rea- district court result of the and find them to convictions and sentences responsible were sonable doubt that the Fenners without merit. question Holley’s con- death. Because no for cerning court, proof is before the the standard *2 LA, Safety, Rouge, of Public Baton for Stald- er and Foster. POLITZ, Judge,
Before Chief DENNIS, REYNALDO G. GARZA and Judges. Circuit POLITZ, Judge: Chief The plaintiffs appeal the district vacating rescinding court’s order consent setting populations decrees inmate guard-to-prisoner parish ratios at correction- assigned, al facilities. For the reasons we jurisdiction. dismiss this for lack of
BACKGROUND nearly For three decades federal courts required problems have been to address in operation prison system. of the Louisiana Schiro,1 action, Hamilton v. In 1969 a class was filed in the Eastern District of Louisiana challenging conditions the New Orleans Parish Prison. In the trial court prison found that the conditions were uncon- decree, stitutional and issued a remediаl in- cluding prisoner population a cap. Over the years, jails as new were built in Orleans Khan, Ayesha Project, National Prison Parish, plaintiff expanded class was DC, Washington, for Hamilton Plaintiffs. prisoners include in the other facilities and Nordyke, Denlinger, Keith E. Baker June population caps were set for same. LA, Nordyke Denlinger, Rouge, & Baton for In four inmates in the Louisiana Williams Plaintiffs. Penitentiary State Angola filed suit in the Weeks, Metairie, Usry, T. Usry Alen & Louisiana, Middle District of claiming that LA, Sixty-Four for Foti and Louisiana Sher- their conditions of confinement were uncon- iffs. action, stitutional. This Williams v. Ed- wards, was treated as a de facto class action Walker, Orleans, LA, Annabelle H. New for Angola both the inmates at and the in- City for of New Orleans. operated by mates housed in facilities Bowers, Nalley Bowers, Patricia Bowers & Department State Louisiana of Correc- Orleans, LA, New for State tions.3 In the district court Stalder and Foster. adopted Special report a Master’s and found Sweeney Rieger,
Shannan
Richard A. Cur-
the conditions of confinement violated
ry, McGlinchey,
Lang,
relief,
Stafford &
resulting
injunctive
Constitution
LA,
Kline,
Rouge,
Dept.
William Lester
LA
including
prisoner population cap.
a
This
(E.D.La.1970).
F.Supp.
1. 338
3.The
class was certified in 1991 but excluded
prisoners
parish jails.
DOC
The class order
to,
alia,
May
was amended on
inter
(June 10, 1975).
2. No. 71-98-B
review,
prisoners.
include such
For ease in
copy of this order is attached hereto as Exhibit A.
the Petition
agreement.
Included with
imposed on all relevant
cap ultimately was
Agreement was a letter from counsel
facilities.
Sheriffs, requesting that
decrees
Thereafter,
sought,
pursuant
the DOC
pаrish
be vacated
pertaining to
facilities
ef-
order,
compre
development of
court
1,1997.
hearing
Following a
fective
bringing
prison
the state
plan for
hensive
*3
26, 1996,
court.approved
September
the
the
compliance.
that
system
Incident to
into full
and
three orders consis-
settlement
entered
the
cooperation of
plan,
secured' the
the DOC
review, copies
ease
of
tent therewith. For
of
in
parishes
to
Louisiana
and cities
house
hereto
these three orders
attached
help
to state confinement
mates sentenced
(state),
(city).
(parish),
B
D
Exhibits
C
and
in the state
overcrowded conditions
alleviate
prisoner
As
numbers
prison
state
facilities.
1996,
23,
the Hamilton
plain-
On October
jails,
in
federal actions were
local
increased
and
tiffs filed a Motion tо Reconsider
Vacate
filed,
overcrowding. To avoid
complaining of
The Hamilton
September
26th.
Orders
decrees, in Ham
spectre
the
of inconsistent
that
issuance of the
plaintiffs contended
the
Morial,4 we
ilton v.
that all federal
ordered
September
funda-
26th orders violated their
subsequently filed
litigation
pending or
then
rights
process
they
mental
due
because
facilities,
state,
prison
parish
local
against
negotiations
in
result-
not included
the
were
indirectly
popu
directly or
to inmate
relating
ing
Agreement
in
and Sheriffs’
the Petition
issues,
in the Middle
be consolidated
lation
Order,
given
filing,
notice
their
were
Thereafter,
in
officials
of Louisiana.
District
thereto,
signatories
and
were not
were
state,
many
parish,
charge of
Louisiana
the
they
presented to and
present when
were
stipulations
city
entered into
and
facilities
The Hamilton
plain-
approved by the
court.
alia,
specifying, inter
and
decrees
they
court
did not
tiffs informed the
that
offieer-to-prisoner ra
population limits and
population cap
of the
consent to the dismissal
1981,
continuously
facilities
tios. Since
these
affecting
facilities cov-
consent decrees
the
judicial oversight of
under the
have been
the Hamilton
by
litigation, and did not
ered
of the Middle Dis
Judge Frank J. Polozola
plaintiffs
the
to act as
counsel for
authorize
caps
population
and the
trict of
represent
their interest.
their counsel or to
officer-to-prisoner ratios have been re
and
responded
moving dismissal of
The State
warranted.
vised as conditions
they
the Hamilton
plaintiffs’ motion because
1994,-the
the Shеriffs
In March
State and
in
the
parties to the suit
which
were not
agreement
“Basic Jail
entitled
orders,
executed
were entered.
that the
in their effort
ensure
Guidelines”
The Hamilton
responded, con-
plaintiffs
system
operate
prison
Louisiana would
n
they
asking, in
tending
parties and
that
were
and laws
with
Constitution
consistent
alternative,
they
to inter-
that
be allowed
of Louisi-
States and
State
United
both the State’s
Judge Polozola denied
vene.
26, 1996,
a Petition
ana. On
Hamilton
plain-
motion to dismiss and the
Purpose of
Approving Settlement for
Order
Hamilton
The
motion to reconsider.
tiffs’
Terminating
filed in
Decrees was
Consent
appealed this order and Sheriff
plaintiffs
quo
class counsel for
the court
Parish moved
Orleans
Charles C. Foti of
plaintiffs
for the Gov-
Williams
and counsel
granted
motion.
appeal. We
dismiss the
DOC, seeking
Secretary of
and
ernor
1,
April
court entered
1997 the district
On
litigation
resolution
between
a final
facilities,
finally releasing
state
an order
all
Agreement stated
them. The Petition
exception
five institutions includ-
with the
agreed to
“dis-
parties had
the Williams
state,
Penitentiary at An-
ing the Louisiana State
for all
all consent decrees”
missal of
reporting
supervision
from further
and
housing
gola,
in-
city facilities
DOC
parish, and
so,
and,
that it
doing
noted
mates,
requirements
except
Louisiana
Penitentia-
State
parish
and local facili-
juvenile
had released
ry Angola
specified
detention
earlier
reporting
1, 1997,
facilities,
they
from further'
ties
effective
is at-
requirements.
copy
A
of that order
effectuating
their
requested
aid
the court’s
Cir.1981).
4.
tached hereto as On the Orleans Parish facilities. The the plаintiffs filed notice of however, parties dispute, Sep- whether the from the 1997 order. The tember 1996 order or the appeal. Sheriffs seek dismissal That relevant, dispositive order is the order. That motion carried with the case and was ordered moment, dispute relevant for the aside outstanding. is thus injunc- challenged explicitly order dissolved by vacating population cap
tive relief parish consent decrees for the facilities. Ac- ANALYSIS clearly cordingly, appealable the order un- addressing ap- Before the merits of this 1292(a)(1). § der 28 U.S.C. peal, determine the threshold we must first A jurisdiction, appeal, close review of the record in this appellate issue of our on our own *4 motion, necessary. if The Sheriffs contend by arguments aided the briefs and oral of non-appealable appeal that involves a counsel, inexorably leads to the conclusion interlocutory of the district court. order We September disposi- that the 26th order is the accept cannot that contention. states, tive order herein. It “IT IS OR- every DERED that each and consent decree statute, The relevant 28 U.S.C. pertaining entered this court to inmate 1292(a)(1) § provides ap that courts of population guard-to-prisoner any ratio at peals appeals shall have of from facility operated by authority or under the of “[¡Interlocutory orders district courts Sheriff, any appearing hereinbelow ... are granting, continuing, modifying, refusing ... VACATED, hereby RESCINDED and are dissolving injunctions, refusing to dis 1, without further effect as of 1997.”7 modify injunctions, except solve or where a gainsaid It cannot be that this order vacates mаy Supreme direct review be had in the and rescinds the consent decrees effective “injunctions” are Court.” Consent decrees 1st; self-executing it is and does not 1292(a)(1).6 meaning within It of section merely entry await the of another order to be the Hamilton chal plaintiffs clear that lenge vacating the order the consent decrees issued on 1st.8 Parish, referring signed 5. In to the state facilities the order 7. Sheriff Foti on behalf of Orleans they that signatories. declares "are released from all further first on the list of sheriff supervision....” parish and The reference to however, jails, they local “have been
Corrections to, housed, but may including, limited be the Although plaintiffs filed a jails, prisons, parish inmates housed at state entry days appeal after of notice of within 30 barracks, jails police city lоckups, or state order, it that it is April the 1st is manifest facility ap- and detention centers they which com- September the 26th order of by proved this Court. They appeal of plain. cannot now revive an Secretary be of This order shall sent to the April appealing the by order earlier final Corrections, sheriff, through Allen each Usu- 1st decree. Greco, Mag- ry, Cyrus John Baker and Ross gio. 27,1993. May Rouge, appellate court lacks This Frank J. Polozola /s/ Judge States District be and is DISMISSED. United appeal must do custody provision Federal Rules of Civil Procedure The to the of the DPSC.” The tenced 10. provide refers the Non-DPSC facili- order which but for a “Motion for Reconsideration” requiring perhaps a final ties be taken could may properly either be considered such motions April parishes would befоre the be order on 1st 59(e) judgment or amend a Rule motion alter consent decrees. When or- released from the 60(b) judgment. motion relief from or a Rule for peti- initiating conjunction in with the der read Inc., Price-Macemon, Kelley F.2d 1408 v. 992 See tion, however, supervision of the is clear that it (5th 60(b) Cir.1993). not toll A Rule motion does being by was retained Non-DPSC facilities running filing a of time for notice only inspections determine for court to allow 59(e) timely a filed Rule motion does. whereas complied with the Basic these facilities
whether
States,
(5th
HAYES to be rescinded and have no further effect on date, 1997. On that the Court shall VERSUS issue a final order of dismissal. ' MCKEITHEN, ET JOHN J. AL that, IT FURTHER IS ORDERED 1, 1997, through responsibilities CIVIL ACTION NO. 71-98-B DPSC Facilities identified in this order will only reports be to submit to the Coui-t those Sept. identified section 3.4 of the Petition for Approving Settlement, Order Settlement Approving Order to maintain accreditation, ACA and to inform the Court parties The have entered the attáched Pe- any changes in population capacity. or-, Approving tition for Order Settlement against der to resolve claims the defendants IT IS FURTHER ORDERED that all agreement in this Considering action. Non-DPSC Facilities in which prison- DPSC considering lengthy history of this being ers are finally held also shall be dis- litigation and of the duration Consent missed from further Court Decree, pursu- finds dismissal 1997. Approving ant to the Petition for Order Set- *6 specified, opposed tlement within the time as IT any IS FURTHER ORDERED thаt to continuation of the decree for the full against Defendants, any new claims the or of period presei'ibed recently the in enacted them, any way pertain that in to the institu- Act, Litigation appropriate. Prison Reform is tions which are identified in this order shall respon- The Court further it finds that be initiated as new..civil actions in state or sibility of the executive officers of the State proper jurisdiction federal courts of and ven- Louisiana, specifically of Secretary ue. Governor, acting DPSC and the through the Counsel, operate'the prison sys- Executive that, IT IS FURTHER ORDERED as of tem in accordance with the Constitutions and 1, 1997, only LSP and the Juvenile laws of the United States and the State of Facilities shall be excluded from this order Louisiana. The Court further finds that the and shall remain on the Court’s docket sub- jurisdiction by exercise of this Court over the ject to further subject resolution and to or- by DPSC Agreement Facilities covered judgments ders and of this Court. necessary shall not be after the termination dates in Ap- set forth attached Petition for IT IS FURTHER ORDERED that a proval of Settlement. hearing shall be scheduled at a latter date in accordance with Rule 23 of the Federal Rules WHEREFORE, IT IS ORDERED that of Civil Procedure. original subsequent and all orders en- by action, tered in including Court Louisiana, Rouge, day this 26th of by the consent decree entered this Court on September, 1996. December 1983 and modifications and Frank J. Polozola /s/ affecting
revisions of that consent decree Upited Judge, Center, Hunt States District Correctional Alen Correctional Center, Center, Avoyelles Winn Correctional Center,
Correctional David Wade Correctiоn- Middle District of Louisiana any IT IS ORDERED that FURTHER
EXHIBIT C
allegation
pending
claim or
as of
any
or
thereafter that
Sheriff
asserted
DISTRICT COURT
UNITED STATES
comply
appearing hereinbelow has failed
any
of
with
terms
this Order
DISTRICT OF LOUISIANA
MIDDLE
1,1997
existing
allegation
or
as of
claim
by
thereafter
or on behalf of
or asserted
PERTAIN-
IN RE
DECREES
CONSENT
anyone
any
appearing
against
herein-
Sheriff
INMATE POPULATION
ING TO
upon
population, guard
inmate
below based
PERTAIN-
AND PRISONER SUITS
ration,
confinement,
conditions of
to inmate
TO INMATE POPULATION
ING
any
asserting
state or federal law claims
or
ORDER
a;n facility governed by.
in
a
held
inmates
pursuant
vacated
to this Or-
consent decree
every
that each and
IT
ORDERED
IS
in,
shall not be asserted
or as violation
der
per
this Court
consent decree entered
Hayes
any
v.
order issued
Williams
guard to
taining
population and
to inmate
Morial,
McKeithen, supra,
v.
John
operated by or
аny facility
prisoner ratio
any
or
as violation
consent
supra,
in or
Sheriff,
any
appearing
authority of
under the
Order,
pursuant
vacated
to this
but
decree
issued,
hereinbelow;
cap
filed or
however
in a court of
be initiated
a new action
shall
to,
tioned, including,
not limited
those
but
jurisdiction and venue. The determi-
proper
caption
of or filed
decrees issued
proper jurisdiction
and venue
nation
such
Hayes
v.
Williams
John
record
Hayes
be made .without reference
McKeithen,
on shall
number 71-89B
civil action
McKeithen, supra,
States District court
v.
Hamil-
the docket of
United
Williams
John
Louisiana,
Morial,
any
Hamil
supra,
for the Middle District
consent
or
decree
ton
Morial,
1981),In
Order,
Cir.
ton v.
644 F.2d
or to
pursuant
to this
vacated
Pertaining
Pop
of,
to Inmate
under,
re Prisoner Suits
arising
out
con-
the docket оf the United States
ulation on
decrees.
ferred
those cases
District of Lou
for the Middle
District Court
that based
IT IS FURTHER ORDERED
filed
the record of
isiana and decrees
Order,
file in the
upon this
the Court will
for Middle
District Court
United States
Appeals for the Fifth
Court of
States
United
caption of
under the
District of
*7
va-
request
that the Fifth- Circuit
Circuit
facility
hereby
any jail
“In re”
or other
and
aside its order of
cate
set
VACATED,
are without
RESCINDED
Morial,
claim or any facility or thereafter that asserted day 26th of This Order is submitted on this comply appearing hereinbelow has failed to Secretary September, behalf of the 1996 on any the terms of this with Order Safety Department of Public & Cor- of 1,1997 allegation existing as of claim or fоllowing institu- rections on behalf of the thereafter or on behalf of or asserted Jail, Jail, City City Amite Basile De- tions anyone against any facility herein- appearing Jail, Farm, Quincy City Carroll Penal East upon population, guard Jail, Jail, below based inmate City City Jennings Eunice Gonzales confinement, ration, Jail, Jail, City City inmate conditions of Lincoln Parish Jonesville Center, Jail, City Mamou Pearl Detention asserting any claims or state or federal law Jail, Jail, City Rayne City City River Slidell facility governed by.a inmates held in a Jail, Jail, Sulphur City Parish Deten- Union pursuant to this Or- consent decree vacated Center, City Mon- tion Vinton Jail and West in, shall not be asserted or as violation der Department. Police roe any Hayes v. or order issued Williams McKeithen, Mortal, supra, John Curry, Richard A. #4671 Is/ any supra, consent or or as violation A. CURRY RICHARD Order, pursuаnt decree vacated to this but Sweeney Rieger, #17165 Shannon action in a court of shall be initiated as a new McGLINCHEY STAFFORD proper and venue. The determi- LANG proper jurisdiction nation of such and venue Liability A Professional Limited Hayes shall be made without reference to Company McKeithen, supra, Floor, Williams v. John Hamil- Ninth One American Place Mortal, any Rouge, Louisiana 70825 supra, decree ton v. consent (504)383-9000 Order, pursuant vacated this or to of, under, jurisdiction arising or con- out Thompson Ronald ferred those decrees. cases Attorney Assistant General IT IS FURTHER ORDERED that based Murphy “Mike” Counsel for J. Order, upon the Court will file Foster, Governor of the State Appeals Stalder, for the Fifth United States Court L. Louisiana and Richard request Circuit a va- Secretary Department Fifth Circuit cate Safety and set & Corrections Public aside its order of
“Petition”), inspected expert the Court’s has *12 juvenile hоusing adult facilities inmates and EXHIBIT E custody sentenced to the offenders DISTRICT COURT Department Safety UNITED STATES of Public & Corrections (“DPSC”) and the Court has and received DISTRICT OF LOUISIANA MIDDLE reports of the in facilities reviewed conditions ' juvenile housing DPSC inmates and offend- WILLIAMS, ET AL HAYES finds there is no need ers. The Court VERSUS supervision the facilities for further over Accordingly, pursuant below. identified MCKEITHEN, AL ET
JOHN J. sub- the Petition and Motion to Dismiss NO. 71-98-B CIVIL ACTION day by the of the State mitted this Governor Secretary of the DPSC: of Louisiana and ORDER following IT IS ORDERED that (excluding Louisiana institutions DPSC by this entered Pursuant orders Penitentiary) fur- are from all State releaséd Peti- response Court supervision of this ther Pur- Approving for Order Settlement tion (the proceedings: Terminating Decree in these pose of Consent Louisiana Correctional Institute for Women Center Allen Correctional Washington Avoyelles Correctional Center Correctional Center Phelps Correctional Center Paul Correctional Center Winn C. Facility/North Training Correctional Work David Wade Center Facility/South Training Work Dixon Correctional Center Police Barracks. Elayn Hunt Correctional State Center Detention Center East Carroll IT IS ORDERED FURTHER Parish Jail East Carroll jails parish have following secure and local Parish East Feliciana Prison from released all further been Evangeline Parish Jail Evangeline Detention Center jurisdiction of and from this Court —Basile Parish Detention Center Franklin reporting requirements: further Parish Jail Grant Facility Parish Criminal Justice Iberia Complex Parish Jail Acadia Parish Detention Iberville Center Annex Acadia Parish Jail Parish Jackson Jail Parish Detention Acadia Center Parish Correctional Center Jefferson Allen Parish Jail Parish Davis Jail Jefferson Parish Jail Ascension Lafayette Parish Correctional Center Assumption Parish Detention Center Parish Jail —Galliano Lafourche Avoyelles Bordelonville Center Detention Lafourche Parish Detention Center Avoyelles Bunkié Parish Jail LaSalle Avoyelles Marksville Detention Center Detention Lincoln Parish Center Avoyelles Correctional Center Women’s Livingston Parish Jail Beauregard Complex Parish Jail Detention Center Madison Parish Parish Jail Bienville Parish Jail and Annex Morehouse Parish Jail Bossier Parish Detention Center Morehouse Penal Farm Bossier Parish Parish Jail Natchitoches Center Caddo Correctional Parish Detention Center Natchitoches Parish Correctional Center Calcasieu Office Parish Criminal Sheriffs Orleans Prison Sheriffs Calcasieu Community Correction Center Parish Detention Center Caldwell House of Detention Parish Jail Caldwell Prison Parish Orleans Parish Jail Catahoula Templeman Phase III Parish Jail II Templeman Claiborne Phase Templeman Parish Jail Concordia Parish Detention White Street DeSoto Center South Rouge Parish Rendon Street Prison East (cid:127)380 Work Release Broad Street reporting all further of this Court from Conchetta requirements proceedings. these Parish Jail Ouachita Center Correctional Ouachita . that all fa- IT IS FURTHER ORDERED Prison Plaquemines Parish juveniles in which sentenced cilities Lockup Sulphur Port Department Safety Public custody of the Lockup Belle Chase Facility Detention New than *13 housed other & Corrections Coupee Parish Detention Center Pointe juvenile named DPSC secure below facilities Rapides Parish Detention Center supervision from all further and are released Jail Parish Red River from all jurisdiction of this Court and further Jail Parish Richland Sabine Parish Jail requirements. reporting Parish Detention Center Sabine Parish Prison St. Bernard that IT FURTHER ORDERED IS Parish Annex Bernard St. housing secure and non-secure facilities Parish Center Correctional St. Charles juvenile and are inmates offenders re- adult Parish Jail St. Helena leased, released, have been from further Detention Parish Center St. James Baptist Parish Prison John the St. requirements supervision reporting Baptist Detention Center St. John the except Peni- that Louisiana State Court Landry Parish Jail St. Angola, tentiary Training at Louisiana Parish Correction St. Martin Center Monroe, Training Martin Parish Sub-Station the Louisiana St. Institute — Mary Jail St. Parish Bridge City, the Jetson Correc- Institute — Tammany Parish Jail St. for Youth and the Tallulah tional Center Tangipahoa Parish Jail Center for Youth are shall Correctional Parish Jail Tensas Parish Detention Cеnter subject jurisdiction Tensas to the and further remain Complex and Justice Terrebonne Parish.Criminal orders of the Court. Annex Detention Union Parish Center Rouge, day Baton this 1st Parish Correctional Center Vermillion April, 1997. Vernon Parish Jail Center Vernon Correctional Frank J. Polozola /s/ Washington Parish Jail Judge, States District United Parish Jail Webster Farm Parish Penal Webster Rouge Parish West Baton Jail Middle District of Louisiana Rouge Parish Center West Detention Parish Jail West Carroll DENNIS, Judge, dissenting: Circuit Parish Center West Feliciana Detention Winn Parish Jail respectfully I dissent. City Amite Jail City Jail Basile majority opinion The rationale is City Baton Route Jail City DeQuincy plaintiffs did Jail that because Hamilton not Parish Prison East Carroll Farm timely appeal Sep- after court’s the district City Eunice Jail 26, order, they 1996 forfeited tember their City Jail Gonzales 1,1997 appeal right to after that court’s City Jennings Jail City Jonesville Jail majority rely The to opinion appears order. City Mamou Jail possible appeala- three to the on theories as City River Jail Pearl September bility of the order: 1996 The Rayne City Jail (1) appealable “clearly ... order is 28 City Slidell Jail Sulphur City Jail 1292(a)(1).” (2) 370; Maj. § Op. at as U.S.C. City
Vinton Jail 1291; § judgment a final under 28 U.S.C. City Jail West Monroe (3) appro- an order that an comes within IT that all exception judgment IS FURTHER final priate ORDERED rule. majority’s work release centers and other non-secure It difficult to see deci- is how soundly housing released facilities adult inmates are sion can based these from all however. grounds, further
381
inherently
is
final
such an order
but
(1)
1292(a)(1).
interlocutory.
§
See 28 U.S.C.
1292(a)(1)
expressly
of 28 U.S.C.
Section
Moreover,
September
the district court’s
interlocutory
permits
appeal frоm
or
an
affecting
plain
order
1996
alia,
that,
court
dis
der
a district
inter
rights expressly provided
the con
tiffs’
interlocutory
injunction.
appeal
An
solves an
1, 1997.”
sent decree was vacated “as of
mandatory,
because the
permissive,
Also,
majority opinion recognizes,
as the
complete
retains
control over
district court
in its
1996 order
district court
interlocutory
entry
its
orders until
of a final
“supervision
the Non-
made clear
merged. A
judgment
they
into which
being
was
DPSC facilities
retained
its
after
party
right
does not forfeit
only
inspections [by
allow
court
bring an inter
failing
the final decree
expert] to
these
Court’s
determine whether
Wilson,
locutory appeal.
Matherne v.
complied
facilities
with the Basic Jail Guide
(5th Cir.1988);
752, 756 & n. 9
Gloria
F.2d
Maj. Op.
(emphasis
n.
lines.”
Smith,
Cir.
S.S Co.
F.2d
Thus,
clearly
original).
court
district
*14
1967).
al.,
19
See also
W.
еt
James
Moore
1,
jurisdiction
April
of the case until
retained
(3d
§ 203.32[3][b]
FEDERALPRACTICE
MOORE’S
purpose
ac
taking
for the
remedial
1997
ed.1998)
cited therein.
and
authorities
any facility
comply.
to
tion
the event
failed
26,
order,
therefore,
September
The
1996
Accordingly,
Septem-
if the
court’s
district
of its
the entire
does not
own force terminate
26,1996
interlocutory
was an
order
ber
order
entry.
litigation as of the
of its
See
date
decree,
injunction-like
dissolving an
consent
467,
Lybrand,
Coopers &
98 S.Ct.
437 U.S.
asserts,
majority
first
the Hamilton
the
minimum, appellate
2454.
a
review
“‘[A]t
interlocutory ap-
plaintiffs’ failure to take an
ordinarily
it is clear
should not
occur before
right
peal
cause them to forfeit their
did not
judge has
of further
that
the
no intention
April
to
after the
court’s final
appeal
district
” In re
reconsidering
challenged ruling.’
the
1,1997 decree.
Industries,
Inc.,
Delta Services
782 F.2d
(5th Cir.1986)
1267,
WRIGHT,
(quoting
1271
15
COOPER,
(2)
&
MILLER &
FEDERALPRACTICE PROCE
(1st ed.1976)).
§
Ciner
DURE 3907
See also
appellate
generally de
Federal
66,
ama,
Music, S.A.,
v.
482 F.2d
Inc.
Sweet
by the
pends
the existence
a decision
on
(2d Cir.1973)
purposes of the
(Among the
70
litigation
the
court that “ends the
on
district
appeal
judgment
prevent
rule is
an
final
“to
nothing
the court to do
merits and leaves
for
concerning which the trial court
on an issue
Lyb
judgment.” Coopers
but execute the
&
up
beyond possi
yet made
has not
its’mind
463, 467,
Livesay, 437
98 S.Ct.
rand v.
U.S.
”);
bility
change.
Erstling
...
v. Southern
(1978)
2454,
(quoting
Accordingly, the district have therefore could case and
diction of the amended, modified, or re- altered
further and rescind its decision to vacate
versed 1, prior time decrees preliminary its date of the effective Consequently, its final decree.
decree and order was
because the the Hamilton by fail- plaintiffs,
interlocutory, interloeutorily, did
ing appeal from it appeal after the right their
forfeit The Hamilton plaintiffs final decree. date, bringing up timely after this
did affecting rights interlocutory orders adjudicated effectively
finally and Therefore, I this court has believe
1997. ap- plaintiffs’
jurisdiction of the from respectfully dissent and I must
peal, majority’s decision. LOVE, Bergeron, Kath- Paul S.
G. Scott *16 Balhoff, Baker and Bennie
leen B. Plaintiffs-Appellants,
Bourgeois, FOSTER, Gov- State of
Mike McKeithen,
ernor; of Louisi- Fox State
ana, Secretary, Defendants-Appellees. 98-30436.
No. Appeals,
United States
Fifth Circuit.
July
1998.
notes
perhaps
8. The confusion manifested herein
re-
released
all
...”
from further
We do
signed
sults from the State order which also was
language
view
this careful choice of
to be
26,
September
says,
on
1996. That order
happenstance.
"WHEREFORE,
origi-
IT IS ORDERED that the
subsequent
nal and all
orders entered
Dep’t Housing
6. See Walker v. United States
action, including
Court in this
[a consent decree
Dev.,
(5th Cir.1990)
and Urban