george-t-haynie-jr-v-fred-raney-george-little-charles-bass-steve ( 1990 )

908 F.2d 973

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
George T. HAYNIE, Jr., Plaintiff-Appellant,
v.
Fred RANEY, George Little, Charles Bass, Steve Hutson, Lucy
Baucom, Francis Markham, Louie Kirby, Wanda Lack, Johnny
Goad, Gary Silcox, Jerry Gibbs, Dan Strickland, Nick Bruno,
Reginald Avant, Defendants-Appellees.

No. 90-5786.

United States Court of Appeals, Sixth Circuit.

July 30, 1990.

Before KRUPANSKY and BOGGS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

ORDER

1

This matter is before the court upon consideration of the appellees' motion to dismiss the appeal for lack of jurisdiction on the basis of a late notice of appeal or on the basis that appellant waived his right to appeal by failing to file objections to the magistrate's report and recommendation. The appellant has failed to respond, but has filed a motion for appointment of counsel.

2

Although this court lacks jurisdiction in this appeal, it is on the basis of the appeal having been taken from a nonappealable order, not on either basis stated by the appellees. The order entered April 25, 1990, from which the appellant appealed, directed that process issue as to three defendants on the issue that he was denied adequate notice and opportunity to prepare for a disciplinary hearing; referred the issue of mailroom policies hindering his right to meaningful access to the courts to the special master appointed in Grubbs v. Bradley, 552 F.Supp. 1052 (M.D.Tenn.1982); and dismissed all other issues and defendants. Appellant appealed from that order on June 4, 1990.

3

Absent a Fed.R.Civ.P. 54(b) certification, an order disposing of fewer than all the claims or parties involved in the action is not appealable. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742-45 (1976); Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 59-60 (6th Cir.1986). No Rule 54(b) certification was made in the instant case. The final decision of the district court has not been entered during the pendency of this appeal; therefore, this court lacks jurisdiction. See Gillis v. United States Dep't of HHS, 759 F.2d 565, 569 (6th Cir.1985).

4

Accordingly, it is ORDERED that the motions to dismiss and for appointment of counsel are denied and the appeal be, and it hereby is, dismissed on the basis that it was taken from a nonappealable order. Rule 9(b)(1), Rules of the Sixth Circuit.