820 F2d 1220 Smith v. Mann

820 F.2d 1220
Unpublished Disposition

Michael Sewell SMITH, Plaintiff-Appellant,
William MANN, Deputy; Lt. Smith; Virginia Beach Sheriff's
Department, Defendant-Appellee.

No. 87-6022.

United States Court of Appeals, Fourth Circuit.

Submitted May 20, 1987.
Decided June 5, 1987.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Before WIDENER, HALL and MURNAGHAN, Circuit Judges.

Michael Sewell Smith, appellant pro se.

Richard McAllister Swope, Williams, Worrell, Kelly & Greer, for appellees.


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Michael S. Smith appeals from an order of the district court entered on January 23, 1987, which dismisses, for failure to state a claim, one of two grounds Smith alleged as a basis for relief pursuant to 42 U.S.C. Sec. 1983. The district court has not yet ruled on the validity of Smith's second ground for relief. The order is therefore not reviewable in this court as a final order.


A federal appeals court has jurisdiction under 28 U.S.C. Sec. 1291 to review final decisions of the district court; that is, judgments which end the litigation on the merits. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). There has been no final judgment in this case, nor any certification from the district court that the order is appealable pursuant to 28 U.S.C. Sec. 1292(b).


Although the district court dismissed one of Smith's claims, Rule 54(b), Fed.R.Civ.P., requires that before an order disposing of fewer than all the claims may be considered final and appealable, the district court must make an express determination that there is no just reason for delay and expressly direct judgment on that claim. There has been no such determination in this case.


Therefore, we dismiss this appeal as interlocutory. We dispense with oral argument because the dispositive issues have recently been decided authoritatively.