Unpublished Dispositionlonnie Miller, Plaintiff-appellant, v. Billy Mcwherter, Larry Seay, Thomas Dial and Loyd Moore,defendants-appellees, 817 F.2d 105 (6th Cir. 1987)

ORDER

This matter is before the Court upon consideration of plaintiff's motion for appointment of counsel. This case has been referred to a panel of this Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the briefs and record, the panel unanimously agrees that oral argument is not needed.

Plaintiff brought this action pursuant to 42 U.S.C. § 1983 against four individuals in connection with an alleged conspiracy to deprive him of his prison job because of his race. Plaintiff subsequently filed a petition for writ of habeas corpus as part of his civil rights action, and filed motions for leave to amend his complaint and for a temporary restraining order. On April 2, 1986, the district court denied plaintiff's habeas petition and his motions for leave to amend his complaint and for a temporary restraining order. This appeal followed.

The district court correctly ruled that plaintiff's habeas petition was merely a reiteration of the civil rights claim raised in plaintiff's Sec. 1983 complaint. Plaintiff did not challenge the fact or length of his confinement, and habeas relief is not appropriate in this civil rights action. Preiser v. Rodriguez, 411 U.S. 475, 498-500 (1973). Plaintiff has stated no claim cognizable under 28 U.S.C. §2254.

The remaining portion of the district court's order is non-appealable, and this Court is without jurisdiction to consider the merits on appeal. First, the denial of plaintiff's motion to amend his complaint is not final and appealable. DeMelo v. Woolsey Marine Industries, Inc., 677 F.2d 1030, 1035 (5th Cir. 1982); Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301, 1304 (9th Cir. 1981). Likewise, the denial of plaintiff's motion for a temporary restraining order is not final and appealable. Office of Personnel Management v. American Federation of Government Employees, AFL-CIO, 105 S. Ct. 3467 (1985).

Therefore, plaintiff's motion for appointment of counsel is denied; the order of the district court is affirmed insofar as it denied plaintiff's petition for writ of habeas corpus, and the appeal is dismissed insofar as it is taken from the denial of plaintiff's motions for leave to amend his complaint and for a temporary restraining order. Rule 9(b), Rules of the Sixth Circuit.