E'thelbert Rucker, Appellant, v. City of Saint Louis et al., Appellees, 612 F.2d 1102 (8th Cir. 1980)

E'Thelbert Rucker appeals the denial of appointment of counsel in his civil rights action against the City of St. Louis and numerous other individuals. Rucker also raises a double jeopardy issue in his brief filed with the court.

Defendants George A. Peach, Douglas A. Forsyth and Daniel P. Finney have filed an untimely motion to dismiss both issues for lack of jurisdiction pursuant to 8th Cir.R. 9(b). Because the district court has not entered an order regarding Rucker's double jeopardy claim, we are without jurisdiction to decide the issue. The motion to dismiss as to this issue is granted.

The motion to dismiss as it relates to the appointment of counsel issue, however, is hereby denied, for the reason that the district court order denying Rucker appointment of counsel is appealable as a final collateral order under 28 U.S.C. § 1291. See Hudak v. Curators of the University of Missouri, 586 F.2d 105, 106 (8th Cir. 1978).

After examining the record we find that this action is without merit, and hold that the district court committed no abuse of discretion in denying appointment of counsel. See 28 U.S.C. § 1915(d). Its order is therefore affirmed.

Rucker has also filed a motion for default judgment under Fed. R. Civ. P. 55. This motion should be addressed to the district court, and is hereby denied.