921 F. 2d 276 - Allen v. W Reynolds

Before WELLFORD and ALAN E. NORRIS, Circuit Judges, and FORESTER, District Judge*.

William Albert Allen is a pro se Tennessee prisoner who appeals the dismissal of his civil rights case under 28 U.S.C. Sec. 1915(d). Allen's case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. He has filed a motion to proceed in forma pauperis and a motion for appointment of counsel in this appeal.

The district court dismissed Allen's case on September 10, 1990, by a marginal order that adopted a magistrate's report and recommendation. However, the magistrate's report and the district court's marginal entry did not address Allen's claims regarding retaliatory segregation, the loss or denial of clothing, and access to the courts. Allen noted the failure to address these claims in his objections to the magistrate's report.

A review of the record indicates that this court does not have jurisdiction to hear Allen's appeal because a final order has yet to issue from the district court. In the absence of a Fed.R.Civ.P. 54(b) certification, an order that disposes of fewer than all of the claims or parties involved in an action is not appealable. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742-45 (1976); Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 59-60 (6th Cir.1986). A Rule 54(b) certification was not entered in the instant case, and a final decision has not been entered during the pendency of this appeal. Under these circumstances, consideration of Allen's appeal would be premature. Cf. Gillis v. United States Dep't of HHS, 759 F.2d 565, 569 (6th Cir.1985).

Accordingly, it is hereby ordered that Allen's motion for pauper status and his motion for appointment of counsel are denied as moot and that this appeal is dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.