Roger J. Burke v. John Wilt, Warden

862 F.2d 313, 1988 U.S. App. LEXIS 15857, 1988 WL 119109

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 4, 1988
• Docket: 88-7240
• Status: Unpublished

Opinion

862 F.2d 313
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Roger J. BURKE, Plaintiff-Appellant,
v.
John WILT, Warden, Defendant-Appellee.

No. 88-7240.

United States Court of Appeals, Fourth Circuit.

Submitted: Sept. 30, 1988.
Decided: Nov. 4, 1988.

Roger J. Burke, appellant pro se.

John Joseph Curran, Jr., Attorney General (Office of the Attorney General of Maryland), for appellee.

Before DONALD RUSSELL, SPROUSE and ERVIN, Circuit Judges.

PER CURIAM:

Roger J. Burke appeals the district court's order granting the defendant an extension of time to file an answer to Burke's 42 U.S.C. Sec. 1983 complaint. He also appeals an order denying his application for a temporary restraining order or a preliminary injunction.

We dismiss the appeal of the order granting the extension of time to respond to Burke's complaint. 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 granting an extension of time 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 Loan Corp., 337 U.S. 541 (1949).

Accordingly, Burke's appeal is dismissed insofar as it challenges the district court's order granting the defendant's motion for an extension of time. We also dismiss the appeal insofar as it challenges the district court's denial of Burke's motion for a temporary restraining order. Drudge v. McKernon, 482 F.2d 1375 (4th Cir.1975).

The district court's order denying a preliminary injunction is appealable at this time, however, and we review the district court's action for abuse of discretion. Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir.1980). Burke's suit alleged that his removal from work release status was unconstitutional, and he asked for an injunction compelling the defendant to allow him to keep his work release job until this suit is resolved. We find that the district court did not abuse its discretion in declining to issue such an order.

We affirm the district court's denying Burke's request for a preliminary injunction. In all other respects, the appeal is dismissed. We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.

AFFIRMED IN PART; DISMISSED IN PART.