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872 F2d 1024 Carter v. Carlton

872 F.2d 1024

David Lee CARTER, Plaintiff-Appellant,
v.
Howard CARLTON; Virginia Lewis, Defendants-Appellees.

No. 89-5199.

United States Court of Appeals, Sixth Circuit.

April 5, 1989.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

ORDER

1

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

2

Review of the papers before the court indicates that appellant filed a complaint pursuant to 42 U.S.C. Sec. 1983 in the District Court for the Eastern District of Tennessee. The district court subsequently referred the case to Magistrate John Powers for disposition of any pretrial matters. On June 27, 1988, however, appellant filed a motion seeking the disqualification of Magistrate Powers. Thereafter, appellant filed this appeal based upon the contention that the district court had denied that motion by order entered December 2, 1988. As of this date the district court has not entered a final order or judgment as to the merits of appellant's cause of action.

3

This appeal must be dismissed for want of jurisdiction. In particular, the court concludes that the appeal is premature as the district court's docket sheet indicates that no order has been entered in regard to appellant's motion to disqualify Magistrate Powers. As a result, there simply is no judgment or order which might be made subject to an appeal pursuant to either 28 U.S.C. Secs. 1291 or 1292. Moreover, this court would still lack jurisdiction even if the district court had ruled upon appellant's motion to disqualify as appellate review of such matters is inappropriate until the district court has entered a final judgment. In re City of Detroit, 828 F.2d 1160, 1167 (6th Cir.1987) (per curiam); City of Cleveland v. Krupansky, 619 F.2d 576, 578-79 (6th Cir.) (per curiam), cert. denied, 499 U.S. 834 (1980).

4

Accordingly, it is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.