Kerry Lee Smith, Plaintiff-appellant, v. Howard Barrett; Frank O'neil, Defendants-appellees, 848 F.2d 186 (4th Cir. 1988)Annotate this Case
Kerry Lee Smith, appellant pro se.
George Beighley, Leslie Arlen Cotter, Jr., Richardson, Plowden, Grier & Howser, for appellees.
Before CHAPMAN and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Kerry Lee Smith appeals the district court's order which stated that the only issue remaining to be litigated was whether excessive force was used against Smith. We dismiss the 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).
Finding no basis for appellate jurisdiction, we dismiss the appeal as interlocutory. We dispense with oral argument because the dispositive issues have been decided authoritatively.