896 F2d 546 Echard v. W McCoy E

896 F.2d 546
Unpublished Disposition

Carl Odell ECHARD, Plaintiff-Appellant,
W. Joseph McCOY, Commissioner of Corrections; Donald E.
Bordenkircher, Warden, West Virginia Penitentiary,

No. 89-6810.

United States Court of Appeals, Fourth Circuit.

Submitted: Oct. 18, 1989.
Decided: Feb. 6, 1990.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Carl Odell Echard, appellant pro se.

Dana Doyle Davis, Assistant Attorney General, Office of the Attorney General of West Virginia, for appellee.

Before WIDENER, MURNAGHAN and WILKINS, Circuit Judges.


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Carl Odell Echard, while an inmate at the West Virginia State Penitentiary at Moundsville, commenced a civil action pursuant to 42 U.S.C. Sec. 1983 complaining about conditions at the prison. Echard's court-appointed counsel was allowed to withdraw and Echard was ordered to proceed pro se. Echard appeals; we dismiss for lack of jurisdiction.


Under 28 U.S.C. Sec. 1291, this Court only has jurisdiction to review final decisions of the district court. A final decision 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)). Final judgment has not yet been entered in this case.


The collateral order doctrine provides a limited exception to the final judgment rule. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Under the collateral order doctrine an interlocutory order may be appealed if it (1) conclusively decides the disputed issue; (2) resolves an important issue which is separate from the merits of the case; and (3) is unreviewable on appeal from the judgment. Firestone, supra, at 375.


In Miller v. Simmons, 814 F.2d 962 (4th Cir.), cert. denied, 484 U.S. 903 (1987), this Court held that a district court's decision denying appointment of counsel is not reviewable by interlocutory appeal, but remains available for review on appeal after entry of final judgment.


Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.