Grady Newingham, et al v. Benny Magness, et al, No. 07-2161 (8th Cir. 2008)

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Court Description: Prisoner case - prisoner civil rights. Court lacked jurisdiction to review certain orders as they were not final and did not qualify for interlocutory appeal; order denying preliminary injunction is affirmed, as the court applied the proper legal analysis and did not err in finding plaintiff's had failed to show either a likelihood of success or irreparable harm.

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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 07-2161 ___________ Grady Newingham, Malik A. Khabir, Appellants, v. Benny Magness, Chairman, Arkansas Board of Correction; Drew Allen Baker, Vice Chairman, Arkansas Board of Correction; Kelly Pace, Arkansas Board of Correction; Mary Parker, Dr., Arkansas Board of Correction; Leroy Brownlee, Arkansas Board of Correction; W L Ferren, (Bill), Arkansas Board of Correction; J. Aaron Hawkins, Sr., Pastor, Arkansas Board of Correction; Mike Huckabee, Governor of Arkansas; Mike Beebe, Attorney General of Arkansas; Larry Norris, Director, Arkansas Department of Correction; Ray Hobbs, Deputy Director, Arkansas Department of Correction; Grant Harris, Warden, Varner Unit, ADC; Thomas Hurst, Assistant Warden, Varner Unit, ADC; Kim Luckett, Assistant Warden, Varner Unit, ADC; Yolanda Clark, Captain, Varner Unit, ADC; Charles Freyder, Chaplin, ADC; Tim Moncrief, * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Appeal from the United States District Court for the Eastern District of Arkansas. [UNPUBLISHED] Assistant Warden, Varner Super Max, ADC; James Gibson, Assistant Director, ADC; David White, Warden, Maximum Security Unit, ADC; Justine Minor, Disciplinary Hearing Officer, ADC; Juanita Mathis, Disciplinary Hearing Officer, ADC; Minnie Drayer, Disciplinary Hearing Officer, ADC; Keith Waddle, Disciplinary Hearing Officer, ADC; Chris Coody, Disciplinary Hearing Officer, ADC; Lorie Taylor, Disciplinary Hearing Officer, ADC; Michael Hutchinson, Sgt., Varner Super Max, ADC; Kenneth Tillman, Lt., Varner Super Max, ADC; James Barnett, Captain, Varner Super Max, ADC; Jacqueline Owens, Disciplinary Officer, Varner Super Max, ADC; Brian Cockrell, Corporal, Maximum Security Unit, ADC; F. Raspberry, Sgt., Maximum Security Unit, ADC; Larry May, Assistant Director, ADC; Tommy James, Assistant Warden, Maximum Security Unit, ADC; Rick Toney, Warden, Varner Super Max, ADC; Ronald Bailey, Lt., Maximum Security Unit, ADC; Does, John & Jane, Appellees. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ___________ Submitted: June 20, 2008 Filed: August 21, 2008 ___________ -2- Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges. ___________ PER CURIAM. Arkansas inmates Grady Newingham and Malik Khabir appeal three interlocutory orders entered in their action challenging prison dietary and grooming policies under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a)(1)-(2). We lack jurisdiction in this appeal to review two of the orders one denying leave to amend the complaint and the other dismissing certain defendants because the orders were not final when this appeal was filed, and did not otherwise qualify for interlocutory appeal. See 28 U.S.C. §§ 1291, 1292; Kassuelke v. Alliant Techsys., Inc., 223 F.3d 929, 930-31 (8th Cir. 2000). As to the order denying a preliminary injunction to stop enforcement of the grooming policy, we conclude that the district court1 employed the proper legal analysis under RLUIPA and did not err in determining that plaintiffs failed to show a likelihood of success on the merits or irreparable harm. See Fegans v. Norris, No. 06-3473, 2008 WL 3266653 (8th Cir. Aug. 11, 2008) (upholding Arkansas grooming policies against RLUIPA challenge); Hamilton v. Schriro, 74 F.3d 1545, 1550-51 (8th Cir. 1996); see also Safety-Kleen Sys., Inc. v. Hennkens, 301 F.3d 931, 935 (8th Cir. 2002) (standard of review); Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc) (preliminary injunction factors). Accordingly, we affirm the district court s order denying preliminary injunctive relief. We also deny plaintiffs request for a writ of mandamus based on conclusory 1 The Honorable William R. Wilson, Jr., United States District Judge for the Eastern District of Arkansas, adopting the report and recommendations of the Honorable H. David Young, United States Magistrate Judge for the Eastern District of Arkansas. -3- assertions of the district court s bias, and we deny as moot plaintiffs motion to consolidate this appeal with Appeal No. 07-3835. ______________________________ -4-

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