OpenJurist

955 F2d 44 Barnes v. J O'Dea III

955 F.2d 44

Michael Anthony BARNES, Plaintiff-Appellant,
v.
Michael J. O'DEA, III, Warden of Eastern Kentucky
Correctional Complex; Robert T. Letcher, Chaplin of Eastern
Kentucky Correctional Complex; Unknown Security Guard; Two
Unknown Case Workers (One Female and One Male); Ed Gehrke;
Don Sapienza; Keith Frederick; Troy C. Bybee; Cecilia
Underwood; Dorm # 2 Security Guard Johnson; Amanda
Korfhage; Karen S. Defew, Defendants-Appellees.

No. 91-6278.

United States Court of Appeals, Sixth Circuit.

Feb. 21, 1992.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

ORDER

1

This matter has been referred to a panel of the court. A review of the record indicates that by order entered September 20, 1991, the district court dismissed claims 1, 4, 5 and 6; directed that summons issue as to claims 2 and 3; and directed that claims 2 and 3 be referred to the magistrate judge for development of a record. By motion filed September 27, appellant sought relief from the September 20 order. On October 24, 1991, appellant filed a notice of appeal from that portion of the order dismissing claim 6 alleging that he was being imprisoned beyond his release date. By order filed December 16, 1991, the district court denied the motion for relief as moot on the basis that appellant appealed the September 20 order.

2

This court lacks jurisdiction in this appeal. Absent 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 Mutual 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). Although the September 20 order stated that it was final and appealable, such is not sufficient for a Fed.R.Civ.P. 54(b) certification. See Purnell v. City of Akron, 925 F.2d 941, 944 (6th Cir.1991); Scarbrough v. Perez, 870 F.2d 1079, 1082 (6th Cir.1989); Knafel v. Pepsi Cola Bottlers of Akron, Inc., 850 F.2d 1155, 1159-60 (6th Cir.1988). 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).

3

It is ORDERED that the appeal be, and it hereby is, dismissed. Rule 8(a), Rules of the Sixth Circuit.