                                REVISED
                    United States Court of Appeals,

                             Fifth Circuit.

                              No. 95-40856

                            Summary Calendar.

          Tyrone Lamel WITHERSPOON, Plaintiff-Appellant,

                                    v.

 Ivan WHITE, in his official capacity as Warden, FCI Texarkana;
Janet Reno, in her official capacity as U.S. Attorney General; Up
Springfellow, in his official capacity as Doctor, FCI Texarkana,
Wade Lee Medical Center, Texarkana, Arkansas; Kathleen Hawk, in
her official capacity as Director of U.S. Bureau of Prisons, CMC
Cord Texarkana, AR, FCI, Defendants-Appellees.

                              May 2, 1997.

Appeal from the United States District Court for the Eastern
District of Texas.

Before JOHNSON, WIENER and DENNIS, Circuit Judges.

     JOHNSON, Circuit Judge:

     Tyrone Lamel Witherspoon appeals the dismissal of his 42

U.S.C. § 1983 action.     However, because the district court failed

to render a final judgment in this action, we dismiss the present
appeal for lack of jurisdiction.

                    I. Facts and Procedural History

     Witherspoon,     a   federal   prisoner,    filed   a   civil   rights

complaint pursuant to 42 U.S.C. § 1983 against Warden Ivan White,

United States Attorney General Janet Reno;           a physician at the

Federal   Correctional      Institute    in     Texarkana,    Texas,   Dr.

Stringfellow; Director of United States Bureau of Prisons Kathleen



                                     1
Hawk (federal defendants);1      and Wadley Medical Center (Wadley),

alleging that the defendants violated his Eighth Amendment rights

by failing to provide medical treatment and a safe environment. In

Witherspoon's complaint, he requested appointment of counsel.             The

magistrate judge denied this request and stated that the questions

presented in this action were "rather routine" and "that the

applicable law [was] well settled."          Furthermore, the magistrate

judge found that Witherspoon was "able to articulate his claim,"

thus alleviating the need for assistance of counsel.2

     Wadley filed an answer to Witherspoon's complaint.                   The

federal     defendants,   however,   filed   a   motion   to   dismiss,    or

alternatively, a motion for summary judgment. The magistrate judge

ordered Witherspoon to respond to the federal defendants' motion.

Witherspoon filed a handwritten letter, requesting the assistance

of appointed counsel in order to respond to the federal defendants'

motion.     Additionally, Witherspoon made a third request for the

appointment of counsel in a formal motion drafted with the help of

a fellow inmate.     Apparently, neither the magistrate nor district

judge reconsidered Witherspoon's potential need for appointment of

    1
     Witherspoon filed his petition against all of the defendants
pursuant to § 1983.     However, because some of the defendants
alleged to have violated Witherspoon's Eighth Amendment rights are
federal defendants, we construe his complaint against them as an
action under Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
See Stephenson v. Reno, 28 F.3d 26, 26 n. 1 (5th Cir.1994).
        2
      Jurisdictional defects prohibit this court from addressing
the merits of whether the district court's denial of appointment of
counsel was improper. However, we note that substantial issues
involving Witherspoon's competency to represent himself were raised
on appeal.

                                     2
counsel at this juncture in the litigation;              indeed, no specific

ruling on either of these last two requests appears in the record.

       The magistrate judge reviewed the federal defendants' motion

to    dismiss   and   alternative   motion    for    summary      judgment   and

recommended granting the motion as a motion for summary judgment.3

After the magistrate judge made his report and recommendation to

the district     court,    Wadley   filed   its    own   motion    for   summary

judgment, which neither the magistrate judge nor the district court

appears to have ever reviewed.

       The district court adopted the magistrate judge's report and

recommendation regarding the federal defendants' motion and issued

a separate final judgment in accordance with Federal Rule 58.                 In

the   district   court's    final   judgment,      the   court    granted    the

"defendants'     motion    to   dismiss"4    and    purported      to    dismiss

Witherspoon's entire complaint with prejudice.                 See discussion

infra pp. ---- - ----.      Witherspoon filed a notice of appeal from

       3
       The magistrate judge found that Witherspoon had failed to
demonstrate that the federal defendants acted with deliberate
indifference to a serious medical need or to his safety needs.
Thus, Witherspoon had failed to prove that the federal defendants
violated his Eighth Amendment rights. Additionally, the magistrate
judge found that the federal defendants were entitled to qualified
immunity due to Witherspoon's inability to allege a constitutional
deprivation.
       4
      The district court stated that it granted the "defendants'
motion to dismiss." However, the magistrate judge recommended that
the defendants' motion be granted as a motion for summary judgment.
The district court, prior to entering its final judgment order,
issued a memorandum order adopting the magistrate's report and
recommendation and stated that "final judgment will be entered in
this   case   in   accordance    with   the    magistrate   judge's
recommendations."   Therefore, we construe the district court's
final judgment order as granting the federal defendants' motion for
summary judgment.

                                      3
the district court's entry of "Final Judgment."

                            II. Discussion

       None of the parties to this action have raised the issue of

the existence of appellate jurisdiction;        nevertheless, we are

obligated to raise the matter on our own motion.     See United States

v. Garner, 749 F.2d 281, 284 (5th Cir.1985).      In general, federal

appellate courts have jurisdiction pursuant to 28 U.S.C. § 1291 to

hear   appeals   from   "final   decisions,"   although    in   limited

circumstances, an appellate court's jurisdiction may extend to

reviewing nonfinal or interlocutory orders.5

       A final judgment is one that "ends the litigation on the

merits and leaves nothing for the court to do but execute the

judgment."   Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98

S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (internal quotations and

citations omitted);     see also Pan Eastern Exploration Co. v. Hufo

Oils, 798 F.2d 837, 838 (5th Cir.1986). Merely labeling a judgment

as final does not make it so.    See Stillman v. Travelers Ins. Co.,

88 F.3d 911, 913 (11th Cir.1996).      The order must adjudicate the

rights and liabilities of all parties properly before the court.

See Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1374

(5th Cir.1980).     In circumstances in which a court order is

ambiguous as to what parties and claims are being disposed of and

       5
         By statute federal courts may hear appeals from certain
interlocutory orders pursuant to 28 U.S.C. § 1292. Additionally,
courts have created certain narrow exceptions allowing appeals of
orders that are determined not to be final.           These exceptions
include the collateral order exception, the death knell exception,
and pragmatic finality.       See 15A CHARLES A. WRIGHT, ET AL., FEDERAL
PRACTICE AND PROCEDURE §§ 3911-3913 (2d ed. 1991).

                                   4
"the district court ... intend[ed] to effect a final dismissal of

a claim, we will construe its order accordingly, despite ambiguous

language that might indicate otherwise."             Picco v. Global Marine

Drilling Co., 900 F.2d 846, 849 n. 4 (5th Cir.1990);              see also 15A

WRIGHT,   ET AL.,   supra, § 3914.6. However, when the record clearly

indicates that the district court failed to adjudicate the rights

and liabilities of all parties, the order is not and cannot be

presumed to be final, irrespective of the district court's intent.

See Patchick v. Kensington Publishing Corp., 743 F.2d 675, 677 (9th

Cir.1984) (holding that when the record indicates that a served

defendant remains a party to an action, the court cannot assume

finality).

          In the present case, the district court issued an order

entitled     "Final     Judgment,"     apparently    intending    to    dismiss

Witherspoon's case in its entirety.             In the order, the court

granted the "defendants' motion to dismiss" and denied all other

outstanding motions.       The face of the order appears unclear as to

whom the district court is referring when it states "defendants'

motion to dismiss."       As stated above, the federal defendants filed

a   motion   to     dismiss,   or   alternatively,   a   motion   for   summary

judgment and Wadley filed a separate motion for summary judgment.

However, after thoroughly reviewing the record, we find that the

district court only granted the federal defendants' motion.

      First, the court granted "defendants' motion to dismiss,"

whereas Wadley never filed a motion to dismiss.                   The federal

defendants, however, file a motion titled, "Defendants' Motion to


                                        5
Dismiss or Alternatively, Motion for Summary Judgment." Thus, when

the district court used the phrase "defendants' motion to dismiss"

the court was simply referencing the name of the specific document

filed by the federal defendants. Second, the district court issued

its judgment in accordance with the magistrate judge's report and

recommendation which dealt solely with the federal defendants'

motion.   While the magistrate never specifically addressed for

which defendants he recommended granting summary judgment, it is

clear after reviewing the record that the recommendation applied

only to the federal defendants.   The record indicates that Wadley

was not represented in this action by the United States Attorney

who filed the motion reviewed by the magistrate judge, and that

Wadley did not file its separate motion for summary judgment until

after the magistrate judge issued his report.      Thus, Wadley's

motion was never before the magistrate judge.

     Because we find that the district court was solely granting

the federal defendants' motion for summary judgment in its final

judgment order, Wadley's motion for summary judgment remained live

and undetermined.   The record indicates that neither the district

court nor the magistrate judge ever ruled on Wadley's motion.

Moreover, Wadley's motion asserted different grounds than those

asserted by the federal defendants, and the magistrate's report,

which the district court adopted, did not address the grounds

asserted by Wadley.   Further complicating matters, the district

judge stated in its final judgment order that "all motions by

either party not previously ruled on [were] denied."    Normally,


                                  6
this phrase is merely boilerplate language used by district courts

to insure the finality of their order.                       In the present case,

however, the district court actually achieved an inverse result.

Since the district court had not ruled on Wadley's motion, the

final judgment order effectively denied Wadley's motion for summary

judgment     and   left   Wadley    as       a   party       to     the   action   with

Witherspoon's claims against Wadley intact.                       Irrespective of the

district court's intent to dismiss Witherspoon's entire action and

issue a final judgment, we hold that Witherspoon's claims against

Wadley are still viable and that the district court's "Final

Judgment" order lacks finality.

        We   do,   however,    recognize         that    a   decision        failing   to

adjudicate the rights and liabilities of all parties, while not

technically final, can be certified as final pursuant to Federal

Rule of Civil Procedure 54(b).               See Thompson v. Betts, 754 F.2d

1243, 1245 (5th Cir.1985).         In certifying a decision as final for

appellate jurisdiction purposes, the district court must comply

with the requirements set out in Rule 54(b).                       See id.    Until the

district court makes an express determination that no just reason

for delay exists and expressly directs entry of judgment, finality

will not attach to an order that disposes of some but not all of

the defendants.     See FED. R. CIV. P. 54(b);           see also Kelly v. Lee's

Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir.1990)

(en banc) (interpreting Rule 54(b) as requiring the language of the

order   appealed     from     to   "reflect[        ]    the       district     court's

unmistakeable intent to enter a partial final judgment under Rule


                                         7
54(b)").    Thus, when the district court fails to clearly indicate

that a judgment disposing of less than all parties was entered

pursuant to Rule 54(b), the judgment is not considered final.                  See

Thompson, 754 F.2d at 1245 (holding that absent a Rule 54(b)

certification, a partial disposition of a multi-party action is not

a final decision under § 1291);             Brookens v. White, 795 F.2d 178,

179 (D.C.Cir.1986) (stating that it is "elementary that a grant of

summary judgment as to some parties in multi-party litigation does

not   constitute     a   final      order     unless     the    requirements   of

Fed.R.Civ.P. 54(b) are met").

      In the instant case, there is no indication in the record that

the district court certified its final judgment order pursuant to

Rule 54(b) or that any of the parties ever sought such a ruling.

See Thompson, 754 F.2d at 1245-46.                  Accordingly, the district

court's    order   can   not   be    viewed    as    a   Rule   54(b)   judgment.

Furthermore, while certain other exceptions to the final judgment

rule may allow appellate courts to hear appeals from otherwise

interlocutory judgments, none of these exceptions apply to the

present case.      The district court has left a substantial part of

the action intact and must dispose of Witherspoon's claims against

Wadley before the court's order may be deemed final and reviewable.

                               III. Conclusion

      The district court attempted to enter a final judgment in the

present case.       However, the court neglected to adjudicate the

rights and liabilities of Wadley, a party properly before the

court.    Because of the district court's failure to dispose of all


                                        8
parties to the litigation, we find that the "Final Judgment" order

lacks finality thus depriving this court of appellate jurisdiction

pursuant to 28 U.S.C. § 1291.   For this reason, the appeal is

     DISMISSED.




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