United States Court of Appeals, Fourth Circuit
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Unpublished Disposition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unpublished dispositions is disfavored except for establishing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service of copies of cited unpublished dispositions of the Fourth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.
Daniel WHISENANT, Plaintiff-Appellant,
v.
William C. DUNCIL, Warden of the Huttonsville Correctional
Center, Ronald O. Gregory, Commissioner,
Department of Corrections, Defendants-Appellees.
No. 90-6132.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 1, 1990.
Decided Oct. 26, 1990.
Appeal from the United States District Court for the Northern District of
West Virginia, at Elkins. Robert Earl Maxwell, Chief District Judge. (CA90-117-E)
Daniel Whisenant, appellant pro se.
N.D.W.Va.
DISMISSED.
Before DONALD RUSSELL and PHILLIPS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
PER CURIAM:
Daniel Whisenant appeals the district court's assessment of a partial filing fee in
his 42 U.S.C. Sec. 1983 suit. We dismiss the appeal for lack of jurisdiction.
Under 28 U.S.C. Sec. 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. Sec. 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. Sec. 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 leave to proceed in forma
pauperis 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.
DISMISSED.
We note that the September 4, 1990, order of the district court is not a final
order because it only denies Whisenant's motion to reconsider the assessment of
the partial filing fee. The order does not dismiss the suit itself. Therefore, the
district court's grant to Whisenant of leave to proceed in forma pauperis on
appeal was inappropriate
