                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-2550
                          ___________________________

                                  Ronald Dee O'Neal

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

Correctional Medical Services, Inc.; Roland Anderson, Dr., Correctional Medical Services

                              lllllllllllllllllllll Defendants

 Robert Scott, Dr., Correctional Medical Services; Rory Griffin, Administrator,
Correctional Medical Services; Estate of James Blackmon, (originally sued as Dr.
                               James Blackmon)

                       lllllllllllllllllllll Defendants - Appellants

       Wendy Kelley, Deputy Director, Arkansas Department of Correction

                              lllllllllllllllllllll Defendant
                                      ____________

                      Appeal from United States District Court
                  for the Eastern District of Arkansas - Pine Bluff
                                   ____________

                               Submitted: April 7, 2014
                                 Filed: May 8, 2014
                                   [Unpublished]
                                   ____________

Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
                         ____________
PER CURIAM.

      Defendants Dr. Robert Scott, Rory Griffin, and the Estate of James Blackmon
appeal the district court’s1 orders denying their motions for summary judgment, and
dismissing Ronald O’Neal’s complaint without prejudice pursuant to Fed. R. Civ. P.
41(a)(2).

       The orders denying summary judgment are not appealable. See Burke v. Ernest
W. Hahn, Inc., 592 F.2d 542, 544, 546 (9th Cir. 1979) (in appeal from denial of
motion for summary judgment and dismissal of action, holding that denial of
summary judgment was not appealable, and dismissing that aspect of appeal); Dutton
v. Cities Serv. Def. Corp., 197 F.2d 458, 458-60 (8th Cir. 1952) (same); see also
Dieser v. Cont’l Cas. Co., 440 F.3d 920, 923 (8th Cir. 2006) (court will raise
jurisdictional issues sua sponte when there is indication jurisdiction is lacking); cf.
Lopez v. Tyson Foods, Inc., 690 F.3d 869, 875 (8th Cir. 2012) (denial of summary
judgment is not appealable after trial and final judgment, regardless whether issue is
factual or purely legal).

      Defendants make no argument challenging the district court’s order dismissing
the complaint without prejudice, thereby waiving the issue. See Jenkins v. Winter,
540 F.3d 742, 751 (8th Cir. 2008) (issues not raised in opening brief are deemed
waived).

      The appeal is dismissed.
                      ______________________________




      1
       The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.

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