OpenJurist

848 F2d 192 Koryto v. Oc Jenkins

848 F.2d 192

Thomas John KORYTO, Plaintiff-Appellant,
v.
O.C. JENKINS, et al., Defendants,
John Gluch; Al Haynes, Defendants-Appellees.

No. 87-1897.

United States Court of Appeals, Sixth Circuit.

May 17, 1988.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before ENGEL, Chief Judge, and KEITH and RYAN, Circuit Judges.

ORDER

1

This matter is before the court for consideration of appellees' motion to dismiss the appeal on the ground that it was taken from a non-final order of the district court. Appellant has not filed a response to the motion to dismiss.

2

Appellant, a federal prisoner, filed a complaint in the district court for the Eastern District of Michigan pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In his complaint plaintiff identified seven named, individuals as well as six unspecified individuals as defendants, all of whom he alleged to have failed to provide him with necessary medical care in violation of the eighth amendment. By orders entered August 7, 1986 and September 1, 1987, however, the district court ordered the dismissal of the complaint as to defendants Blevins and Jenkins and Gluch and Haynes respectively. Appellant filed this appeal subsequent to the entry of the latter of those orders.

3

Review of the record indicates that the order of September 1, 1987 does not constitute a final adjudication of plaintiff's cause of action as his claims against the remaining defendants are still the subject of ongoing proceedings before the district court. As a result, that order can not be considered to be final and appealable absent the certifications of finality required by Fed.R.Civ.P. 54(b). As the order of September 1, 1987, clearly lacks those certifications, it remains a non-appealable interlocutory order under 28 U.S.C. Sec. 1291. Liberty Mut. Co. v. Wetzel, 424 U.S. 737, 744 (1976); Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 59 (6th Cir.1986).

4

Therefore, it is ORDERED that the appeal be and hereby is dismissed.