Berry v. McBride

86 F. App'x 620

Opinion

PER CURIAM.

James W. Berry, Sr., seeks to appeal from the district court’s order adopting the magistrate judge’s recommendation and (1) denying Berry’s motion for a temporary restraining order or a preliminary injunction, (2) granting the motion to dismiss filed by Correctional Medical Services, and (3) granting in part the remaining Defendants’ motion to dismiss. The district court denied the motion to dismiss this 42 U.S.C. § 1983 (2000) action as to Berry’s discrimination, retaliation, and Eighth Amendment claims. We affirm in part and dismiss in part.

This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2000), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2000). Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Except to the extent that Berry appeals from the denial of his motion for a prehminary injunction, the order Berry seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss this portion of the appeal for lack of jurisdiction.

With respect to the appeal from the district court’s denial of Berry’s motion for a preliminary injunction, we have reviewed the record and find no reversible error. Accordingly, we affirm this portion of the appeal for the reasons stated by the district court. See Berry v. McBride, No. CA-02-856 (S.D.W.Va. Sept. 25, 2003). 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.

AFFIRMED IN PART; DISMISSED IN PART