L. v. Zirus

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50896

W. L., IV, as Next Friend of W.L.,V, a Minor,

Plaintiff-Appellee

v.

SCOTT ASH JAMES ZIRUS,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:19-CV-607

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
*

W.L. IV, as next friend of W.L. V, a minor, filed suit against Scott Ash
James Zirus, Texas prisoner # 1640002, claiming that Zirus sexually assaulted
W.L. The suit is still pending in district court. Zirus filed a substantive motion
to dismiss W.L.’s claims and a motion to be included in the pretrial conferences
or dismiss for lack of prosecution, both of which were denied. Zirus timely
appealed both orders, but subsequently withdrew his notice of appeal as to the

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 20, 2020

Lyle W. Cayce
Clerk
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No. 19-50896
2
denial of the latter motion. He now moves for leave to proceed in forma
pauperis (IFP) on appeal.
We must examine the basis of our own jurisdiction, sua sponte, if
necessary. Trent v. Wade, 776 F.3d 368, 387 (5th Cir. 2015). We may hear
appeals only from: (1) “final decisions under 28 U.S.C. § 1291”;
(2) “interlocutory decisions under 28 U.S.C. § 1292”; (3) “nonfinal judgments
certified as final under” Federal Rule of Civil Procedure 54(d); or (4) “some
other nonfinal order or judgment to which an exception applies.” Briargrove
Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536, 538 (5th
Cir. 1999) (footnotes omitted). We “sometimes exercise our jurisdiction over
an interlocutory appeal pursuant to the collateral order doctrine,” which states
“that a party can immediately appeal an order from the district court if the
district court's order 1) conclusively determines the disputed issue, 2) resolves
an important issue that is completely separate from the merits of the action,
and 3) is effectively unreviewable on appeal from a final judgment.” Marler v.
Adonis Health Prods., 997 F.2d 1141, 1142-43 (5th Cir. 1993).
Zirus argues that this is a collateral order reviewable on interlocutory
appeal because the three arguments raised and rejected in his motion to
dismiss are issues of law separate from the merits of the action and effectively
unreviewable on an appeal from the final judgment. As for his first two
arguments, both of which concern what constitutes a sexual act, neither was
conclusively resolved by the district court. Moreover, the arguments are
central to the merits of W.L.’s federal claim and would be reviewable on appeal
from the final judgment. See id. As for his third argument, whether W.L. was
required to specifically invoke 28 U.S.C. § 1367(a) to confer jurisdiction over
the state law claims, at a minimum, this issue is not effectively unreviewable
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on an appeal from the final judgment. See In re Greene Cty. Hosp., 835 F.2d
589, 596 (5th Cir. 1988).
Accordingly, Zirus’s appeal is DISMISSED for lack of jurisdiction. His
motion for leave to proceed IFP on appeal is DENIED.
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