822 F2d 55 Smith v. D Leeke

822 F.2d 55
Unpublished Disposition

Leonard A. SMITH, Plaintiff-Appellant,
William D. LEEKE; South Carolina Department of Corrections,
Defendant- Appellee.

No. 86-6756.

United States Court of Appeals, Fourth Circuit.

Submitted May 20, 1987.
Decided June 23, 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NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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 RUSSELL, MURNAGHAN and CHAPMAN, Circuit Judges.

Leonard A. Smith, appellant pro se.


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Leonard A. Smith appeals the district court's order entered August 20, 1986. The court ordered Smith to pay a partial filing fee of $10.00 by September 8, 1986. See Evans v. Croom, 650 F.2d 521 (4th Cir.1981), cert. denied, 454 U.S. 1153 (1982). Smith was warned that failure to pay the fee would result in dismissal of the lawsuit. Smith did not pay the requisite fee and, before an order of dismissal was entered, appealed the August 20 order.


Under 28 U.S.C. Sec. 1291, this Court has jurisdiction to review final decisions of the district court. A final judgment disposes of all issues in dispute as to all parties. "Federal appellate jurisdiction generally depends on the existence of a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233) (1945)). The lower court's order did not end the litigation of this 42 U.S.C. Sec. 1983 action on the merits. Thus, it was not a "final" order as that term is used in Sec. 1291.


The district court did not direct the entry of final judgment as to any party, see Fed.R.Civ.P. 54(b), or certify the order for interlocutory appeal under 28 U.S.C. Sec. 1292(b). The order is not appealable under the exceptions of 28 U.S.C. Sec. 1292(a). Nor should the order be treated as final under Cohen v. Beneficial Industrial Corp., 337 U.S. 541 (1949).


As the record and other materials before this Court indicate that it would not significantly aid the decisional process, we dispense with oral argument. Leave to proceed in forma pauperis is denied, and the appeal is dismissed.