Unpublished Dispositiontimothy P. Reed, Plaintiff-appellant, v. John F. Kinkela; Terry L. Morris; George D. Alexander; J. L.eichenlaub; John Doe; Jonathan Lucas, Defendants-appellees, 827 F.2d 770 (6th Cir. 1987)Annotate this Case
Before RALPH B. GUY, JR., and BOGGS, Circuit Judges, and SUHRHEINRICH, District Judge.*
This matter is before the court upon consideration of the appellees' motion to dismiss and the appellant's response.
Plaintiff initiated a 42 U.S.C. § 1983 action alleging that the defendants violated his rights by failing to provide him with adequate medical care. The magistrate filed a report and recommendation recommending that summary judgment be granted to defendant Lucas; the motion to dismiss the eighth amendment claim against defendants Duncan, Kinkela and Morris be granted; and the complaint remain pending against defendants Eichenlaub and Alexander until their motion for summary judgment is resolved. The report and recommendation was adopted by the district court on May 13, 1987. Plaintiff appealed the May 13, 1987, order. That 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 his 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 to dismiss be granted and the appeal be dismissed for lack of jurisdiction. Rule 8, Rules of the Sixth Circuit.
The Honorable Richard F. Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation