* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-20906

Summary Calendar

 

K. ARTIS EWING,

Plaintiff-Appellant,

versus

JAMES A. COLLINS ET AL.,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-93-CV-1986

- - - - - - - - - -

March 16, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

K. Artis Ewing (Texas prisoner #366466) appeals several

rulings of the magistrate judge in his suit brought under 42

U.S.C. § 1983. The magistrate judge’s rulings are contained in

two interlocutory orders. The first interlocutory order was

entered on November 12, 1996. The second interlocutory order was

entered on September 30, 1997. Ewing has also filed a motion for

the appointment of counsel on appeal and a “Second Motion of

Objection to Records Designated,” which is construed as a motion 
No. 97-20906

-2-

to supplement the record on appeal.

After reviewing the record and the briefs of the parties, we

conclude that we lack jurisdiction over all of the magistrate

judge’s rulings that Ewing challenges, except for the magistrate

judge’s denial of Ewing’s motion for the appointment of counsel. 

Ewing’s notice of appeal, filed in October 1997, was not timely

as to the magistrate judge’s order of November 12, 1996. See

Fed. R. App. P. 4(a)(1)(A). Thus, we lack jurisdiction to review

the rulings made in that order.

Ewing’s notice of appeal was timely as to the magistrate

judge’s order of September 30, 1997. However, the only ruling in

that order over which we have jurisdiction is the magistrate

judge’s denial of Ewing’s motion for the appointment of counsel. 

See Robbins v. Maggio, 750 F.2d 405, 413 (5th Cir. 1985)

(interlocutory order denying the appointment of counsel to an

indigent plaintiff in a civil rights action is immediately

appealable). Our review of the district court docket sheet

indicates that the magistrate judge appointed counsel for Ewing

on April 24, 1998, during the pendency of his appeal. Thus,

Ewing’s argument regarding the denial of his motion for the

appointment of counsel has become moot.

We lack jurisdiction to review the remaining rulings in the

magistrate judge’s September 1997 order because they are not the

type of rulings which are immediately appealable absent a final

decision in the case. See 28 U.S.C. §§ 1291, 1292; Marler v.

Adonis Health Products, 997 F.2d 1141, 1143 (5th Cir. 1993)

(discussing collateral order doctrine). Two of the magistrate
No. 97-20906

-3-

judge’s rulings in the September 1997 order--the denial of

Ewing’s motion for a temporary restraining order and the denial

of his motion requesting an order requiring Wayne Scott to show

cause why a protective order or a preliminary injunction should

not issue--arguably are appealable as orders denying injunctive

relief. See 28 U.S.C. § 1292(a)(1). Appellee Scott concedes as

much in his letter brief.

Although an order denying an injunction is immediately

appealable, see § 1292(a)(1), an order denying an application for

a temporary restraining order is not. See In re Lieb, 915 F.2d

180, 183 (5th Cir. 1990). Because the magistrate judge denied

both motions without any type of hearing, the magistrate judge’s

ruling on both of those motions is more appropriately

characterized as the denial of a motion for a temporary

restraining order, rather than as the denial of a motion for a

preliminary injunction. See Belo Broadcasting Corp. v. Clark,

654 F.2d 423, 426 (5th Cir. 1981)(in determining proper

characterization of the denial of “a so-called temporary

restraining order,” central inquiry goes to nature and scope of

hearing that precedes denial of the motion); cf. Dilworth v.

Riner, 343 F.2d 226, 229 (5th Cir. 1965)(order denying temporary

restraining order properly treated as an appealable order denying

a preliminary injunction because order was made after a fullscale hearing). Because the magistrate judge’s ruling is more

appropriately characterized as the denial of a motion for a

temporary restraining order, the ruling is not immediately

appealable. See In re Lieb, 915 F.2d at 183. 
No. 97-20906

-4-

The only ruling of the magistrate judge over which we have

jurisdiction is the denial of Ewing’s motion for the appointment

of counsel. That ruling, however, is now moot. Accordingly, we

DISMISS Ewing’s appeal as moot. Ewing’s motion for the

appointment of counsel and his motion to supplement the record

are also DENIED as moot.

MOTIONS DENIED AS MOOT; APPEAL DISMISSED AS MOOT.