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  • Leonard A. Smith v. William D. Leeke South Carolina Department of Corrections, Defendant, 822 F.2d 55, 4th Cir. (1987)

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    Leonard Smith appealed a district court order requiring him to pay a $10 partial filing fee to proceed with his 42 U.S.C. § 1983 action. The Fourth Circuit found that the district court's order was not a final decision ending the litigation on the merits, and thus was not appealable under 28 U.S.C. § 1291. As the order did not direct entry of final judgment for any party or certify the case for interlocutory appeal, and no exceptions applied, the Fourth Circuit dismissed the appeal for lack of jurisdiction.

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    Filed: 1987-06-23 Precedential Status: Non-Precedential Citations: 822 F.2d 55 Docket: 86-6756

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    Leonard Smith appealed a district court order requiring him to pay a $10 partial filing fee to proceed with his 42 U.S.C. § 1983 action. The Fourth Circuit found that the district court's order was not a final decision ending the litigation on the merits, and thus was not appealable under 28 U.S.C. § 1291. As the order did not direct entry of final judgment for any party or certify the case for interlocutory appeal, and no exceptions applied, the Fourth Circuit dismissed the appeal for lack of jurisdiction.

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    Leonard A. Smith v. William D. Leeke South Carolina Department of Corrections, Defendant, 822 F.2d 55, 4th Cir. (1987)

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    Leonard Smith appealed a district court order requiring him to pay a $10 partial filing fee to proceed with his 42 U.S.C. § 1983 action. The Fourth Circuit found that the district court's order was not a final decision ending the litigation on the merits, and thus was not appealable under 28 U.S.C. § 1291. As the order did not direct entry of final judgment for any party or certify the case for interlocutory appeal, and no exceptions applied, the Fourth Circuit dismissed the appeal for lack of jurisdiction.

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    of 2

    822 F.

    2d 55
    Unpublished Disposition

    NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of


    unpublished dispositions is disfavored except for establishing
    res judicata, estoppel, or the law of the case and requires
    service of copies of cited unpublished dispositions of the Fourth
    Circuit.
    Leonard A. SMITH, Plaintiff-Appellant,
    v.
    William D. LEEKE; South Carolina Department of
    Corrections,
    Defendant- Appellee.
    No. 86-6756.

    United States Court of Appeals, Fourth Circuit.


    Submitted May 20, 1987.
    Decided June 23, 1987.

    Before RUSSELL, MURNAGHAN and CHAPMAN, Circuit Judges.


    Leonard A. Smith, appellant pro se.
    PER CURIAM:

    Leonard A. Smith appeals the district court's order entered August 20, 1986.
    The court ordered Smith to pay a partial filing fee of $10.00 by September 8,
    1986. See Evans v. Croom, 650 F.2d 521 (4th Cir.1981), cert. denied, 454 U.S.
    1153 (1982). Smith was warned that failure to pay the fee would result in
    dismissal of the lawsuit. Smith did not pay the requisite fee and, before an order
    of dismissal was entered, appealed the August 20 order.

    Under 28 U.S.C. Sec. 1291, this Court has jurisdiction to review final decisions
    of the district court. A final judgment disposes of all issues in dispute as to all
    parties. "Federal appellate jurisdiction generally depends on the existence of a
    decision by the District Court that 'ends the litigation on the merits and leaves

    nothing for the court to do but execute the judgment.' " Coopers & Lybrand v.
    Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S.
    229, 233) (1945)). The lower court's order did not end the litigation of this 42
    U.S.C. Sec. 1983 action on the merits. Thus, it was not a "final" order as that
    term is used in Sec. 1291.
    3

    The district court did not direct the entry of final judgment as to any party, see
    Fed.R.Civ.P. 54(b), or certify the order for interlocutory appeal under 28
    U.S.C. Sec. 1292(b). The order is not appealable under the exceptions of 28
    U.S.C. Sec. 1292(a). Nor should the order be treated as final under Cohen v.
    Beneficial Industrial Corp., 337 U.S. 541 (1949).

    As the record and other materials before this Court indicate that it would not
    significantly aid the decisional process, we dispense with oral argument. Leave
    to proceed in forma pauperis is denied, and the appeal is dismissed.

    DISMISSED.

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