OpenJurist

828 F2d 20 Tolbert v. Blair

828 F.2d 20

George TOLBERT #142-112, Plaintiff-Appellant,
v.
Captain BLAIR, Lt. E. P. Keller, Sgt. William C. May, C/O
Kiser, C/O Robert L. Williams, C/O Blankenship,
C/O Holland in their Individual &
Official Capacities,
Defendants-Appellees.

No. 87-3544

United States Court of Appeals, Sixth Circuit.

September 8, 1987.

ORDER

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges, and SUHRHEINRICH, District Judge.*

2

This appeal has been referred to this panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

3

A review of the record indicates that the judgment of the district court dismissing the civil rights action was entered May 6, 1987. A Rule 59(e), Federal Rules of Civil Procedure, motion to alter or amend judgment was served on May 15, 1987, and filed on May 19, 1987, within the ten day period provided by Rule 59(e), Federal Rules of Civil Procedure, and computed by Rule 6(a), Federal Rules of Civil Procedure. The Rule 59(e) motion tolled the appeals period. Rule 4(a)(4), Federal Rules of Appellate Procedure. The notice of appeal was filed on June 1, 1987, and docketed as appeal number 87-3544. The Rule 59(e) motion was denied on June 10, 1987. A second notice of appeal was filed on June 19, 1987, and docketed as appeal number 87-3695.

4

At the time the June 1, 1987, notice of appeal was filed, the motion for reconsideration and not been ruled upon. Rule 4(a)(4), Federal Rules of Appellate Procedure, provides that a notice of appeal filed before the disposition of a timely Rule 59(e) motion 'shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. . . .' A timely notice of appeal is mandatory and jurisdiction. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Browder v. Director, Department of Corrections, 434 U.S. 257 (1978).

5

It is ORDERED that appeal number 87-3544 be dismissed for lack of jurisdiction as premature. Rule 9(b)(1), Rules of the Sixth Circuit. The dismissal of appeal number 87-3544 does not affect the pendency of appeal number 87-3695.

*

The Honorable Richard F. Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation