Unpublished Dispositionellsworth H. Lawson, Plaintiff-appellant, v. Ted Engle, Superintendent, Chillicothe Corr. Facility;charles A. Clifton; and Imogene Ferguson,defendants-appellees,george F. Denton, Director; P.v. Tanedo, M.d., Defendants, 826 F.2d 1063 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 826 F.2d 1063 (6th Cir. 1987) Aug. 20, 1987

Before MILBURN and RYAN, Circuit Judges, and GEORGE CLIFTON EDWARDS, JR., Senior Circuit Judge.


ORDER

This matter is before the court upon consideration of the motion for appointment of counsel.

A review of the record indicates that plaintiff filed a civil rights action in the district court on January 6, 1981. Denton was dismissed as a defendant on October 12, 1983. On May 2, 1986, a motion for summary judgment was filed by defendants Engle, Clifton and Ferguson. Summary judgment as to those three defendants was granted and a final judgment dismissing the case was entered November 19, 1986.

Counsel for the plaintiff filed on February 11, 1987, a Rule 60(b), Federal Rules of Civil Procedure, motion for relief from judgment seeking to have the judgment modified to reflect that the action against Tanedo was still pending. In February and March of 1987, plaintiff sought leave to file delayed appeals but no ruling was made by the district court on those motions. The November 19, 1986, judgment was vacated by the district court on March 11, 1987. On May 21, 1987, the district court dismissed defendants Engle, Clifton and Ferguson and directed that the action continue as to defendant Tanedo. Plaintiff appealed on June 9, 1987, from the May 21, 1987, order.

The May 21, 1987, order disposed of fewer than all the parties involved in the action. The district court did not expressly determine that there is no just reason for delay and did not direct entry of a final judgment pursuant to Rule 54(b), Federal Rules of Civil Procedure. Therefore, the order appealed from is not final and appealable. McIntyre v. First National Bank of Cincinnati, 585 F.2d 190 (6th Cir. 1978); Moody v. Kapica, 548 F.2d 133 (6th Cir. 1976); Oak Construction Co. v. Huron Cement Co., 475 F.2d 1220 (6th Cir. 1973). The final decision of the district court has not been entered during the pendency of this appeal; therefore, this court lacks jurisdiction. Gillis v. Dep't of Health and Human Services, 759 F.2d 565 (6th Cir. 1985).

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