OpenJurist

876 F2d 104 Tate v. Fine

876 F.2d 104

Marshall TATE, Plaintiff-Appellant,
v.
Evans FINE; Gary Livesay, Warden; Tim McGraw; Lynn V.
Taloe; Thereasa Adkins; Harold Angel, Cpl.;
Patricia S. Smith; Howard Cook,
Defendants-Appellees.

No. 89-5568.

United States Court of Appeals, Sixth Circuit.

June 13, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 and RYAN, Circuit Judges and DAVID D. DOWD, Jr., 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

Review of the papers before the court indicates that appellant filed a civil rights action pursuant to 42 U.S.C. Sec. 1983 in the District Court for the Eastern District of Tennessee. On March 15, 1989, however, the district court entered a judgment dismissing the complaint after which appellant filed a notice of appeal on March 23, 1989. On the same date appellant also filed and served a motion to reconsider the judgment pursuant to Fed.R.Civ.P. 59(e). Pursuant to the time computation standards contained in Fed.R.Civ.P. 6(a), that action took place within 10 days of the district court's entry of judgment.

4

This court lacks jurisdiction over the appeal. Specifically, the appeal is premature as appellant filed the notice of appeal contemporaneously with his timely service and filing of a motion to reconsider the judgment. Pursuant to Fed.R.App.P. 4(a)(4), a notice of appeal filed during the pendency of such a motion is ineffective to provide this court with jurisdiction. Instead, appellant must file a new notice of appeal within 30 days after the district court's entry of an order disposing of the motion to reconsider. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam); Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978).

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