OpenJurist

828 F2d 20 Wrenn v. Department of Mental Health State of Ohio

828 F.2d 20

Curtis L. WRENN, Plaintiff-Appellant,
v.
DEPARTMENT OF MENTAL HEALTH, STATE OF OHIO, Donald E.
Widmann, M.D., Individually and Official Capacity, Timothy
B. Moritz, M.D., Individually and Official Capacity, Myers
R. Kurtz, Individually and Official Capacity, Defendants-Appellees.

Nos. 87-3278, 87-3554

United States Court of Appeals, Sixth Circuit.

September 3, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and WISEMAN, Chief United States District Judge.*

2

These appeals have 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 district court's February 19, 1987, decision was filed February 20, 1987, and that the judgment was entered February 24, 1987. A Rule 59(e), Federal Rules of Civil Procedure, motion for reconsideration was served on February 19 and filed on February 26, 1987, within ten days after entry of the decision and tolled the appeals period. Rule 4(a)(4), Federal Rules of Appellate Procedure. A notice of appeal was filed on March 9, 1987, docketed as appeal number 87-3278, and the filing fee paid. Reconsideration was denied on April 6, 1987. A notice of appeal filed before the ruling on a time tolling motion has no effect and a new notice of appeal is required to be filed within the prescribed time measured from the entry of the order disposing of the motion. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). This court lacks jurisdiction in appeal number 87-3278.

4

A new notice of appeal was filed on May 5, 1987, and docketed as appeal number 87-3437. Leave to proceed in forma pauperis on appeal was sought from the district court and denied on May 22, 1987. A notice of appeal was filed on June 8, 1987, from the May 22 order and docketed as appeal number 87-3554. Review of an order of the district court denying leave to proceed on appeal in forma pauperis is sought by filing a motion for leave to proceed in forma pauperis in this court, not by filing an appeal. Rule 24(a), Federal Rules of Appellate Procedure. Since the docketing of appeal number 87-3554, appellant has paid the filing fee in 87-3437.

5

It is ORDERED that appeals 87-3278 and 87-3554 be dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit. The dismissal of those appeals does not affect the pendency of appeal number 87-3437.

*

The Honorable Thomas A. Wiseman, Jr., Chief United States Judge for the Middle District of Tennessee, sitting by designation