911 F.2d 731
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
David Lee CARTER, Plaintiff-Appellant,
v.
C.W. MITCHELL, Otie R. Jones, Defendants-Appellees.
No. 90-5439.
United States Court of Appeals, Sixth Circuit.
Aug. 20, 1990.
Before RYAN and ALAN E. NORRIS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
ORDER
This matter is before the court upon consideration of the appellees' motion to dismiss the appeal on the basis that it was taken from a nonappealable order. Appellant in response thereto has filed a motion to strike the motion to dismiss.
A review of the record indicates that appellant, Carter, filed a 42 U.S.C. Sec. 1983 civil rights complaint to which was attached motions for a temporary restraining order and for a declaratory judgment. The district court allowed amendment of the complaint by adding Jones as a defendant. On February 27, 1990, the district court filed an order staying the action for a ninety-day period to allow Carter to exhaust his administrative remedies. Carter filed a Fed.R.Civ.P. 60 motion on March 5, 1990, to vacate the stay order. He filed a notice of appeal on March 19, 1990, from the "motion for injunction that was timely filed with the complaint in this action and the denial of plaintiff's motion to vacate it's (sic) order of stay." The order denying the motion to vacate the order of stay was filed April 11, 1990.
This court lacks jurisdiction in this matter. The notice of appeal is appealing the denial of the motion to vacate the stay order. At the time the notice of appeal was filed, no ruling had been made on the motion to vacate. In addition, the notice of appeal is also seeking to have this court review the motion for injunction which was filed in the district court. The district court has not ruled on the motion for a temporary restraining order. Therefore, at the time the notice of appeal was filed, neither of the matters upon which appellant sought review by this court had been ruled upon. No final and appealable order has been entered by the district court.
It is ORDERED that the motion to dismiss be granted and the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 8, Rules of the Sixth Circuit.