816 F2d 678 Clark v. Barksdale

816 F.2d 678

Herschel CLARK, Plaintiff-Appellant,
Eugene BARKSDALE, Sheriff; Kenneth Rook, Chief Deputy; and
Six Unknown Agents, Defendants-Appellees.

No. 87-5203.

United States Court of Appeals, Sixth Circuit.

April 24, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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


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Appellees move to dismiss this appeal as premature. Appellant moves for appointment of counsel, but has failed to respond to appellees' motion.


Appellant filed a notice of appeal on February 17, 1987, appealing from an order entered on January 13, 1987. Two orders were filed on January 13, 1987, and entered on January 14, 1987, and it is unclear from which order appellant is appealing.


However, regardless of which order is appealed, neither order filed on January 13, 1987, is appealable. The first order denied appellant's motion to amend his complaint. The second order dismissed two of the defendants pursuant to 28 U.S.C. Sec. 1915(d). Because these orders disposed of fewer than all the claims and parties, the orders are not appealable. Rule 54(b), Federal Rules of Civil Procedure; McIntyre v. First National Bank of Cincinnati, 585 F.2d 190 (6th Cir. 1978). The action is still pending on the remaining claims and because no final judgment has been entered during the pendency of this appeal, the court lacks jurisdiction. Gillis v. Department of Health and Human Services, 759 F.2d 565 (6th Cir. 1985).


Accordingly, appellees' motion is granted, the appeal is dismissed and appellant's motion for counsel is denied. Rule 9(b)(1), Rules of the Sixth Circuit.