Unpublished Dispositionrobert Earl Ellis, Plaintiff-appellant, v. Daryl Styer, Co Ii; Dr. G. Martinez; Harry K. Russell,supt., Defendants-appellees, 826 F.2d 1063 (6th Cir. 1987)Annotate this Case
Before RALPH AND B. GUY, Jur., and BOGGS, Circuit Judges, SUHRHEINRICH, District Judge.*
This matter is before the court upon consideration of the motion to dismiss the appeals and the appellant's response thereto.
A review of the record indicates that by order filed January 15, 1987, the district court adopted the magistrate's report and recommendation, denied a motion for an injunction, denied a motion to strike and granted summary judgment as to Dr. Guillermo Martinez and Harry Russell. Appeal number 87-3394 was taken on April 24, 1987, from the portion of the January 15, order which granted summary judgment to two of the three defendants. On April 29, 1987, appeal number 87-3426 was taken from an order filed April 21, 1987, denying a preliminary injunction.
This court does not have jurisdiction in appeal number 87-3394. The January 15, 1987, order dismissing two of the three defendants did not contain an express determination that there is no just reason for delay nor did it expressly direct entry of a final judgment pursuant to Fed. R. Civ. P. 54(b). Therefore, the order dismissing two of the defendants is not a final order pursuant to 28 U.S.C. § 1291 from which an appeal can be taken to this court. Moody v. Kapica, 548 F.2d 133 (6th Cir. 1976) (per curiam); 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. Department of Health and Human Services, 759 F.2d 565 (6th Cir. 1985).
This court does have jurisdiction in appeal number 87-3426. The appeal was taken from an order denying a preliminary injunction which is appealable pursuant to 28 U.S.C. § 1292(a).
It is ORDERED that the motion to dismiss be granted as it applies to appeal number 87-3394 and denied as it applies to appeal number 87-3426.
The Honorable Richard F. Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation