Unpublished Dispositionhallison H. Young, Frederick A. Patmon, Patmon, Young Andkirk, and Patmon and Young, Plaintiffs-appellants, v. Patricia J. Boyle, et al., Defendants-appellees, (84-1284)and Bonnie Burks, et al., Defendants-appellees. (84-1287), 765 F.2d 147 (6th Cir. 1985)

The defendants move to dismiss these appeals for lack of jurisdiction. In Case No. 84-1284, the defendants argue that a motion filed by the plaintiffs under Rule 60(b), Federal Rules of Civil Procedure, should be construed as a motion under Rule 59(e). We decline to construe the motion in this way and conclude that we have proper jurisdiction over the appeal.

In Case No. 84-1287, the defendants argue that the appeal was from a non-final order. The order granted a protective order and continued a stay of the district court proceedings except for action regarding the issue of qualified judicial immunity. It is clear that the protective order is a discovery order that is not appealable. Dow Chemical Co. v. Taylor, 519 F.2d 352, 354 (6th Cir.), cert. denied, 423 U.S. 1033 (1975).

The question then becomes the nature of the stay order. A stay is not ordinarily a final decision for purposes of 28 U.S.C. § 1291 unless the stay amounts to dismissal of the underlying suit. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 10-11 (1983). Here the district court did allow further proceedings regarding the issue of qualified official immunity. So the stay did not amount to dismissal of the underlying suit. It should be noted that the plaintiffs have now appealed from the final judgment in this case, and can raise on that appeal any issues regarding the protective order or stay.

The motion to dismiss Case No. 84-1284 is denied. The motion to dismiss Case No. 84-1287 is granted.