762 F. 2d 1005 - Ricky Beamon et al. v. Otie R Jones et al.

This cause is before this Court on defendants-appellants' motion to dismiss the appeal of the district court's partial dismissal of the plaintiffs' civil rights suit brought under 42 U.S.C. Sec. 1983. The appellees allege that this Court lacks jurisdiction to consider the matter since the partial dismissal does not constitute a final order pursuant to 28 U.S.C. Sec. 1291 and Rule 54(b), Federal Rules of Civil Procedure.

Having considered appellees' contention, this Court agrees. The appellants appealed from the district court's August 24, 1984 order which dismissed three causes of action and granted leave to amend their fourth cause of action. The district court did not expressly certify 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 is not a final and appealable decision pursuant to 28 U.S.C. Sec. 1291. Moody v. Kapica, 548 F.2d 133 (6th Cir. 1976). The attention of the district court, however, is called to this Court's decision in Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983), with respect to its sua sponte dismissal of part of the claims made by plaintiffs. See also: Spruytte v. Waiters, 753 F.2d 498 (6th Cir. 1985); Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985) (per curiam).

Therefore, it is ORDERED that the motion to dismiss be and hereby is, GRANTED.