Unpublished Dispositionroscoe W. Fields, Sr., Plaintiff-appellant, v. Darrell Johnson and Robert Lee, Defendants-appellees, 848 F.2d 190 (6th Cir. 1988)

Before KRUPANSKY and DAVID A. NELSON, Circuit Judges, and BARBARA K. HACKETT, District Judge.^* 

ORDER

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the record indicates that on September 30, 1987, the magistrate directed that the 42 U.S.C. § 1983 civil rights complaint be filed, that summonses issue on Lee and Johnson, but that summonses not issue on Fowler, Mullins and Rehnquist. On the same day, the magistrate filed a report and recommendation recommending that the complaint be dismissed as to Fowler, Mullins and Rehnquist. The summonses were served on Lee and Johnson on October 1, 1987. An order adopting the magistrate's report and recommendation, dismissing the three unserved defendants and denying plaintiff's motion for interlocutory appeal of the magistrate's report and recommendation was entered on October 19, 1987. Plaintiff appealed from the October 19 order dismissing three of the five defendants on October 28.

This court lacks jurisdiction in the appeal. Absent a Fed. R. Civ. P. 54(b) certification, and except as otherwise provided in 28 U.S.C. § 1292, an order disposing of fewer than all the claims or parties is not appealable. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976); Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 62 (6th Cir. 1986). No 54(b) certification was made in the instant case, and 28 U.S.C. § 1292 has no application here. The final decision of the district court has not been entered during the pendency of this appeal; therefore, this court lacks jurisdiction. See Gillis v. Department of Health and Human Services, 759 F.2d 565 (6th Cir. 1985).

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