12-3953
Encarnacion v. Goord

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
23rd day of September, two thousand fourteen.

Present:    ROSEMARY S. POOLER,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
            VALERIE CAPRONI,1
                        District Judge.
_____________________________________________________

BERNABE ENCARNACION,

                                 Appellant,

                           -v-                                                  12-3953-pr

DAVID ROCK, SUPERINTENDENT, GREAT MEADOW
CORRECTIONAL FACILITY, DONALD SELSKY,
DIRECTOR, SPECIAL HOUSING UNIT, GLENN GOORD,
COMMISSIONER, DEPARTMENT OF CORRECTIONAL
SERVICE, MICHAEL P. MCGINNIS, SUPERINTENDENT2,
SULLIVAN CORRECTIONAL FACILITY,

                        Appellees.
__________________________________________

Appearing for Appellant:         Bernabe Encarnacion, Attica, N.Y.


        1
       The Honorable Valerie Caproni, United States District Court for the Southern District
of New York, sitting by designation.
        2
            The Clerk of the Court is directed to amend the caption as above.
       Appeal from the United States District Court for the Western District of New York
(Larimer, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is DISMISSED.

        Bernabe Encarnacion appeals from the August 27, 2012 decision and order of the United
States District Court for the Western District of New York (Larimer, J.) sua sponte dismissing
his action seeking relief under 42 U.S.C. § 1983. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

         We lack jurisdiction over Encarnacion’s appeal because it is taken from a nonfinal order.
With several exceptions not applicable here, a district court order is appealable only if the
district court enters a final order. 28 U.S.C. § 1291. A final order 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 (1978) (internal quotation marks omitted). We lack
jurisdiction over an appeal where, as here, the district court enters final judgment despite
overlooking claims contained in the complaint. See United States ex rel. Polansky v. Pfizer, Inc.,
2014 WL 3844149 (2d Cir. Aug. 6, 2014).

        The district court decision and order is silent as to Encarnacion’s allegations that he was
subjected to cruel and unusual punishment in violation of the Eighth Amendment. There is no
apparent explanation for the district's court’s silence, and its ruling on Encarnacion’s double
jeopardy claim is unrelated to his Eighth Amendment claim. If the district court intended to
dismiss the Eighth Amendment claims as well, then it may clarify its reasons for dismissal, and
re-enter final judgment. Otherwise, the Eighth Amendment claim will likely proceed to final
adjudication. Either of those scenarios would establish a jurisdictional basis for a subsequent
appeal.

       Accordingly, we DISMISS the appeal for lack of appellate jurisdiction.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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