OpenJurist

890 F2d 416 Mitchell v. Palk

890 F.2d 416

Emmanuel MITCHELL, Plaintiff-Appellant,
v.
Cpl. James PALK; Co.1 Joel Whittenburg, Defendants,
Warden Livesay; Associate Warden Howard Carlton; Cpl.
Cathy Patterson; Co.1 Larry Adkisson; Edith Underwood,
Lpn; Associate Commissioner George Little; Lt. James
Fowler; Donita Gothard; Cpl. Smith; Bobbie Delong,
Defendants-Appellees.

No. 89-6386.

United States Court of Appeals, Sixth Circuit.

Dec. 1, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 BOYCE F. MARTIN, Jr. and ALANE NORRIS, Circuit Judges and CONTIE, 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

A review of the documents before the court indicates that the district court by order entered July 31, 1989, dismissed the civil rights action except as to two of the defendants and paragraphs one through nine of the complaint. Appellant appealed on October 2, 1989, from the July 31 order.

3

This court lacks jurisdiction in this appeal. 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). Even if the July 31, 1989, order had been appealable, the notice of appeal was not filed within the thirty day appeal period provided by Fed.R.App.P. 4(a)(1).

4

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