917 F2d 23 Whisenant v. C Duncil O

917 F.2d 23
Unpublished Disposition

Daniel WHISENANT, Plaintiff-Appellant,
William C. DUNCIL, Warden of the Huttonsville Correctional
Center, Ronald O. Gregory, Commissioner,
Department of Corrections, Defendants-Appellees.

No. 90-6132.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 1, 1990.
Decided Oct. 26, 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NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert Earl Maxwell, Chief District Judge. (CA-90-117-E)

Daniel Whisenant, appellant pro se.



Before DONALD RUSSELL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.


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Daniel Whisenant appeals the district court's assessment of a partial filing fee in his 42 U.S.C. Sec. 1983 suit. We dismiss the appeal for lack of jurisdiction.


Under 28 U.S.C. Sec. 1291 this Court has jurisdiction over appeals from final orders.* A final order is one which disposes of all issues in dispute as to all parties. It "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945).


As the order appealed from is not a final order, it is not appealable under 28 U.S.C. Sec. 1291. The district court has not directed entry of final judgment as to particular claims or parties under Fed.R.Civ.P. 54(b), nor is the order appealable under the provisions of 28 U.S.C. Sec. 1292. Finally, the order is not appealable as a collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).


Finding no basis for appellate jurisdiction, we deny leave to proceed in forma pauperis and dismiss the appeal as interlocutory. 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.




We note that the September 4, 1990, order of the district court is not a final order because it only denies Whisenant's motion to reconsider the assessment of the partial filing fee. The order does not dismiss the suit itself. Therefore, the district court's grant to Whisenant of leave to proceed in forma pauperis on appeal was inappropriate