Ariel Falcon, Plaintiff-appellant, v. Jerry Clem; Mr. Yeargin, Defendants-appellees, 856 F.2d 186 (4th Cir. 1988)

Ariel Falcon, a former federal inmate, filed suit against several prison officials alleging violations of his constitutional rights. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1973). On December 2, 1987, the district court set the matter for pretrial conference on January 19, 1988, and jury trial on February 1, 1988. On December 17, 1987, Falcon noted this appeal, claiming that the district court should not have set the matter for trial without appointing counsel for him or requiring the defendants to answer discovery.

This Court has jurisdiction under 28 U.S.C. § 1291 to review final orders of the district court. An order is final if 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). This appeal is taken from neither a final order nor an appealable interlocutory order. Falcon's concerns about the district court's handling of his discovery and counsel requests can be pursued only on appeal from the final judgment. Cf. Miller v. Simmons, 814 F.2d 962 (4th Cir. 1987) (denial of appointed counsel not appealable prior to entry of final judgment), cert. denied, 56 U.S.L.W. 3267 (U.S. Oct. 13, 1987) (No. 86-6884); Cochran v. Birkel, 651 F.2d 1219 (6th Cir. 1981) (order limiting discovery not appealable prior to judgment), cert. denied, 454 U.S. 1152 (1982).

We accordingly dismiss this appeal. We dispense with oral argument because the dispositive issues have been decided authoritatively.

DISMISSED.