Miller v. Stieneke ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GARY LEWIS MILLER,
Plaintiff-Appellant,
v.
DANIEL L. STIENEKE ; MACK JARVIS;
MICHAEL E. BUMGARNER; J. HARDY;
No. 99-7165
SERGEANT BISSETT; CORRECTIONAL
OFFICER LINDSEY; CORRECTIONAL
OFFICER JACKSON; SERGEANT ADAMS;
CORRECTIONAL OFFICER HILL; HAROLD
SMALLS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CA-98-845-5-F)
Submitted: December 16, 1999
Decided: December 28, 1999
Before MURNAGHAN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
Gary Lewis Miller, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Gary L. Miller appeals the district court's orders: (1) denying his
petition for a writ of mandamus and a preliminary injunction for the
return of certain items of personal property, (2) denying his petition
for a writ of mandamus seeking review of the decision of North Caro-
lina Prisoner Legal Services not to represent him on his 42 U.S.C.A.
§ 1983 (West Supp. 1999) action, and (3) seeking discovery materi-
als. We affirm in part and dismiss in part.
Although a final order has not been entered in this action, this
Court has jurisdiction to review the denial of Miller's motion for a
preliminary injunction. See 28 U.S.C. § 1292(a)(1994). We have
reviewed the record and find that the claim contained in his motion
for a preliminary injunction is beyond the scope of this action and that
Miller's failure to exhaust his administrative remedies bars recovery
on this claim. Accordingly, we affirm the decision of the district court
because Miller has failed to show any likelihood of success on the
merits of this claim. See Hoechst Diafoil Co. v. Nan Ya Plastics
Corp., 174 F.3d 411, 417 (4th Cir. 1999).
Because the district court has not entered a final order in this
action, the court's orders denying his two petitions for mandamus are
nonappealable, interlocutory orders. We therefore dismiss the appeal
of the district court's denial of these petitions for lack of jurisdiction.
See 28 U.S.C. § 1292 (1994); Fed. R. Civ. P. 54(b); see also Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Similarly, the
denial of Miller's discovery motion is not immediately appealable.
See id.We deny Miller's motions to stay the district court proceedings
pending interlocutory review and for the production of documents.
We dispense with oral argument because the facts and legal conten-
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tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART AND DISMISSED IN PART
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