Delaney v. Marsh, (4th Cir. 2011)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6059

GEORGE FREDRICK DELANEY,

Plaintiff - Appellee,

v.

JOHN MARSH, M.D.,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Roanoke. Glen E. Conrad, Chief

District Judge. (7:08-cv-00465-gec-mfu)

Submitted: April 28, 2011 Decided: May 4, 2011

Before DAVIS, KEENAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Rosalie Fessier, TIMBERLAKE, SMITH, THOMAS & MOSES, PC,

Staunton, Virginia, for Appellant. George Fredrick Delaney,

Appellee Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: John Marsh, M.D., seeks to appeal the district court's partial denial of summary judgment in this 42 U.S.C. § 1983 (2006) action. This court may exercise jurisdiction only over final orders, 28U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28U.S.C. § 1292 (2006); Fed. R. Civ. P.

54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 54546 (1949). The order Marsh seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. See Johnson v. Jones, 515 U.S. 304, 319-20 (1995) ("[W]e hold that a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a 'genuine' issue of fact for trial."). Accordingly, we dismiss the appeal for lack of jurisdiction. We deny the Plaintiff's motions for appointment of counsel and 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.

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