Eli Alvarez v. Kenneth Lassiter

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6005
ELI ALVAREZ,
Plaintiff - Appellant,
and
GIVONNO CARTER; MARVIN H. JOHNSON; MALCOLM THARRINGTON;
BRIAN L. MARTIN, JR.,
Plaintiffs,
v.
KENNETH LASSITER, Director of Prisons at Department of Public Safety;
DONNIE WATKINS, Assistant Superintendent at Marion Correctional Institution;
HUBERT CORPENING, Superintendent at Marion Correctional Institution;
JENNY JENKINS, Director of RDU Program at Marion Correctional Institution;
GREGORY SWINK, RDU Program Case Manager at Marion Correctional
Institution,
Defendants - Appellees.
Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Frank D. Whitney, Chief District Judge. (1:18-cv-00116-FDW)
Submitted: May 30, 2019 Decided: June 11, 2019
Before MOTZ, THACKER, and RUSHING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Eli Alvarez, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Eli Alvarez seeks to appeal the district court’s interlocutory order in his 42 U.S.C.
§ 1983 (2012) action. The district court conducted a review pursuant to 28 U.S.C.
§ 1915(e)(2)(B) (2012) and held that Alvarez could proceed with his claim for injunctive
relief based on his allegation that the Defendants deprived him of property without due
process. The district court dismissed Alvarez’s remaining claims for relief and denied his
motion for preliminary injunctive relief, his first motion to amend, and his motion for the
appointment of counsel. For the reasons set forth below, we dismiss the appeal.
This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291(2012), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012); Fed. R.
Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949).
Although an order denying a preliminary injunction is an immediately appealable
interlocutory order that is reviewable for abuse of discretion, see 28 U.S.C. § 1292(a)(1)
(2012); WV Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292,
298 (4th Cir. 2009), Alvarez does not challenge the district court’s denial of his motion
for a preliminary injunction in his informal brief. Accordingly, he has waived review of
this issue. See 4th Cir. R. 34(b) (“The Court will limit its review to the issues raised in
the informal brief.”); Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (noting
importance of Rule 34(b)).
The portion of the order that denied some, but not all, of Alvarez’s § 1983 claims,
denied his first motion to amend as moot, and denied his motion for appointment of counsel
is neither a final order nor an appealable interlocutory or collateral order. See Porter v.
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Zook, 803 F.3d 694, 696 (4th Cir. 2015) (“Ordinarily, a district court order is not ‘final’
until it has resolved all claims as to all parties.”). With respect to Alvarez’s second motion
to amend, the district court has yet to issue any order. Accordingly, we dismiss the claims
raised in Alvarez’s informal brief for lack of jurisdiction. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
DISMISSED
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