OpenJurist

876 F2d 104 Smith v. Swisher H

876 F.2d 104

Lawrence SMITH, also known as Lonnie Miller, Plaintiff-Appellant,
v.
Kathryn SWISHER, State Appointed Attorney for Shelby County,
Hughes Stanton, Prosecuting Attorney for Shelby County,
William H. Williams, Judge in Division 111 Shelby County
Criminal Court, City of Memphis Police Department, John
Gaston Hospital, City of Memphis, Defendants-Appellees.

No. 89-5543.

United States Court of Appeals, Sixth Circuit.

June 9, 1989.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

ORDER

2

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

3

Examination of the record indicates that appellant filed a complaint pursuant to 42 U.S.C. Sec. 1983 in the District Court for the Western District of Tennessee on December 21, 1988. Prior to service of the complaint upon appellees, however, the district court entered a judgment dismissing the complaint on January 12, 1989. Appellant filed a notice of appeal on January 17, 1989. Six days later, on January 23, 1989, appellant filed a motion to reconsider which the district court denied by order entered January 25, 1989.

4

The court lacks jurisdiction over the appeal. Specifically, the appeal is premature due to appellant's filing of a motion to reconsider in the district court on January 23, 1989. Under the time computation standards contained in Fed.R.Civ.P. 6(a), that action took place within 10 days of the entry of judgment and the motion to reconsider, therefore, was made pursuant to Fed.R.Civ.P. 59(e). Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667-70 (5th Cir.) (en banc), cert. denied, 479 U.S. 930 (1986). As a result, the motion operated to toll the time for filing a notice of appeal under Fed.R.App.P. 4(a)(4), thereby invalidating the notice of appeal filed on January 17, 1989. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). Appellant could not take an appeal from the district court's final judgment of January 12, 1989, until the disposition of the motion to reconsider. Fed.R.App.P. 4(a)(4). Review of this court's files discloses that appellant complied with that requirement by filing a second notice of appeal, case no. 89-5544, subsequent to the denial of the motion to reconsider on January 25, 1989.

5

Accordingly, it is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.

*

The Honorable David D. Dowd, Jr., U.S. District Judge for the Northern District of Ohio, sitting by designation