816 F. 2d 683 - White v. Brown Md

Appellant has filed a notice of appeal from an order of the district court which accepts the Magistrate's Report and Recommendation and refers the case back to the Magistrate for further proceedings. The report of the Magistrate recommends first that all claims for monetary damages against defendant Perry Johnson, Director of the Michigan Department of Corrections, be dismissed due to his lack of personal knowledge or involvement. The report in its recommendations also limits appellant's discovery of certain requested prison medical documents and denies appellant's motion for an appointment of an expert. A schedule for discovery and for filing pretrial statements and orders is included at the conclusion of the report.

Pursuant to 28 U.S.C. Sec. 1291, the courts of appeals shall have jurisdiction from all final decisions of the district courts. A decision is considered final when it terminates on the merits all issues presented in the litigation and leaves nothing to be done except enforce by execution what has been determined. Donovan v. Hayden, Stone, Inc., 434 F.2d 619, 620 (6th Cir. 1970). An order which grants or denies a motion for discovery is not a final and appealable order. Cochran v. Birkel, 651 F.2d 1219, 1221 (6th Cir. 1981); Dow Chemical Co. v. Taylor, 519 F.2d 352 (6th Cir. 1975), cert. denied 423 U.S. 1033.

Nor is an order which dismisses fewer than all parties or claims final and appealable absent requisite certification and entry of a final judgment during the pendency of the appeal. Solomon v. Aetna Life Ins. Co., 782 F.2d 58 (6th Cir. 1986); Gillis v. Department of Health and Human Services, 759 F.2d 565 (6th Cir. 1985); McIntyre v. First Nat'l. Bank of Cincinnati, 585 F.2d 190 (6th Cir. 1978). The present order appealed from contains no such certification and no final judgment has been entered during the pendency of this appeal. Cf. Gillis, supra.

Because the district court order merely denies a motion for discovery and dismisses fewer than all claims against one defendant, this Court lacks jurisdiction to entertain this appeal. Accordingly, this appeal is dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.