Jack L. Powers v. Patrick J. Fielder , 978 F.2d 1261 ( 1992 )

978 F.2d 1261

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Jack L. POWERS, Plaintiff-Appellant,
v.
Patrick J. FIELDER, Defendant-Appellee.

No. 92-1033.

United States Court of Appeals, Seventh Circuit.

Submitted Oct. 21, 1992.*
Decided Oct. 22, 1992.

Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

ORDER

1

Jack L. Powers, a Wisconsin state inmate, appeals the district court's dismissal of his civil rights case without prejudice to his right to refile it once he retains counsel to represent him. We conclude that the dismissal order is not a final appealable order because the district court contemplated further proceedings in the case. Peters v. Welsh Dev. Agency & Dev. Capital Group, Ltd., 920 F.2d 438, 439-40 (7th Cir.1990). First, the district court never entered a final judgment in a separate document as required by Fed.R.Civ.P. 58. Such an entry would have signalled its view that the case was over. Corion Corp. v. Chen, 964 F.2d 55, 56 (1st Cir.1992). Second, the order of dismissal stated that the dismissal was without prejudice. Such an order is generally not final and appealable. Production & Maintenance Employees' Local 504 v. Roadmaster Corp., 954 F.2d 1397, 1402 (7th Cir. 1992) (citing Ordower v. Feldman, 826 F.2d 1569, 1572 (7th Cir. 1987)). Third, the district court stated that the case was dismissed "until [Powers] is able to retain counsel. At that time he may move to reopen the case." This languate indicates it is possible for Powers to resurrect his case, and this possibility destroys finality. Willhelm v. Eastern Airlines, Inc., 927 F.2d 971, 972-73 (7th Cir. 1991). The appeal is accordingly dismissed for lack of jurisdiction pursuant to 28 U.S.C. § 1291.

2

Dismissed.

*

After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record