Unpublished Dispositionrichard Lee Helzer, Petitioner-appellant, v. Robert Lecureux, Warden, Kinross Correctional Facility,respondent-appellee, 918 F.2d 957 (6th Cir. 1990)

ORDER

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the record indicates that the district court filed on October 18, 1990, an amended judgment denying petitioner's petition for a writ of habeas corpus and reopening the action in order to determine whether to grant petitioner's request to have his habeas petition construed as a 42 U.S.C. § 1983 action. The appellant appealed from that order.

Absent Fed. R. Civ. P. 54(b) certification, an order disposing of fewer than all the claims or parties involved in the action is not appealable. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742-45 (1976). No 54(b) certification was made in the instant case. The final decision of the district court has not been entered during the pendency of this appeal; therefore, this court lacks jurisdiction. See Gillis v. Department of HHS, 759 F.2d 565, 569 (6th Cir. 1985). The case has been reopened, and, in effect, grants Helzer's October 2, 1990, motion to construe the petition as a 42 U.S.C. § 1983 complaint.

It is ORDERED that the appeal be, and hereby, is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.