Rose Meckley, Plaintiff-appellant, v. Broaddus Hospital, Chairman of the Board, Broaddus Hospital,chief Hospital Administrator, Broaddus Hospital, Karl Myers,doctor, Denise Liston, Director of Nursing, Doris Lambert,nurse, Brenda Pomraning, Nurse, West Virginia Department Ofcorrections, Ron Gregory, Commissioner, Mike House,superintendent, Frank Phares, Deputy Superintendent, Johnmarkley, Employment Officer, and Barbara Adams, Rite Auvil,stephanie Bartholome, Ron Baisi, James Bobella, Jamesbolyard, Bob Brown, June Carter, Junior Cross, Terryduckworth, T.k. Foley, Laura Gallo, Nelson Haller, Edmiller, James Reed, Bonnie Richards, Doc Robinson, Bobbyrobinson, Ethel Saunders, Doug Stevens, Louis Stevens, Marcwalters, George Watkins, Lisa Weaver, Correctional Officers,defendants-appellees,andgary Shaw, Harold Marteney, Defendants, 921 F.2d 272 (4th Cir. 1990)Annotate this Case
Submitted Dec. 7, 1990. Decided Dec. 26, 1990
On Petition for Rehearing.
Rose Meckley, appellant pro se.
James Alexander Swart, Office of the Attorney General,. John Andrew Smith, Kay, Casto, Chaney, Love & Wise, Charleston, W.V., for appellees.
918 F.2d 173, WITHDRAWING IN PART, MODIFYING IN PART, ON REHEARING.
AFFIRMED IN PART, DISMISSED IN PART.
Before WIDENER, PHILLIPS and WILKINSON, Circuit Judges.
Rose Meckley has filed a petition for rehearing in her appeal Meckley v. Broaddus Hospital, No. 90-6121 (4th Cir. Nov. 19, 1990) (unpublished). We grant the petition and withdraw our previous opinion in part and modify in part. The portion of the previous opinion dismissing Meckley's appeal of the district court's order requiring that she submit several copies of an in forma pauperis petition and affidavit remains unchanged.
We withdraw the portion of the previous opinion which stated that this Court did not have jurisdiction to consider the district court's dismissal of two defendants since Meckley had not filed a notice of appeal regarding this issue. The notice of appeal referring to this issue has been located. However, we still dismiss this appeal for lack of jurisdiction.
Under 28 U.S.C. § 1291 this Court has jurisdiction over appeals from final orders. A final order is one which disposes of all issues in dispute as to all parties. 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).
As the order appealed from is not a final order, it is not appealable under 28 U.S.C. § 1291. The district court has not directed entry of final judgment as to particular claims or parties under Fed. R. Civ. P. 54(b), nor is the order appealable under the provisions of 28 U.S.C. § 1292. Finally, the order is not appealable as a collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
We modify our previous opinion regarding Meckley's appeal of the district court's denial of injunctive relief. We have jurisdiction to consider the appeal of this issue under 28 U.S.C. § 1292(a) (1). Our review of the record and the district court's opinion discloses that when the district court dismissed this claim, Meckley was no longer incarcerated at the facility from which she sought injunctive relief. Accordingly, the district court's dismissal of Meckley's claim for injunctive relief on the ground of mootness is affirmed. Meckley v. Broaddus Hospital, CA-90-55-E (N.D.W. Va. May 22, 1990).
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED IN PART AND DISMISSED IN PART.