Irvin K. Scales, Plaintiff-appellant,andleon P. Scott, James Byrd Miller, Horace M. Wilson, Plaintiffs, v. Aaron J. Johnson, John G. Patseavouras, Gene T. Cousins,nathan A. Rice, Bobby R. Watson, L.w. Vaughn,defendants-appellees, 920 F.2d 927 (4th Cir. 1990)Annotate this Case
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Chief District Judge. (CA-88-5-CRT)
Irvin K. Scales, appellant pro se.
LaVee Hamer Jackson, Office of The Attorney General, Raleigh, N.C., for appellees.
Before K.K. HALL, MURNAGHAN and WILKINSON, Circuit Judges.
Irvin K. Scales appeals the district court order granting summary judgment on all claims except those relating to an equal protection challenge concerning alleged disparities in the prison diet. 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 deny Scales's motions to file a formal brief, for clarification and compliance, for a rehearing, and for a rehearing en banc,* and dismiss the appeal as interlocutory. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
We deny the motions for a rehearing and a rehearing en banc as premature. These motions may be refiled within fourteen days. Fed. R. App. P. 40(a)