OpenJurist

914 F2d 1494 Al-Bari v. Neal

914 F.2d 1494

Abdul AL-BARI, Plaintiff-Appellant,
v.
Clint NEAL, Bobby Laxton, Willie Powel, Hambley, Ltn., Five
Unknown Prison Officials, Defendants-Appellees.

No. 90-5589.

United States Court of Appeals, Sixth Circuit.

Sept. 21, 1990.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 KEITH and MILBURN, Circuit Judges, and THOMAS, Senior 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. Appellant now moves for a transcript at government expense and an extension of time in which to file a brief.

3

Review of the record discloses that pursuant to a jury verdict, the district court entered a judgment dismissing appellant's civil rights action on October 23, 1989. Appellant thereafter filed and served a timely motion for a new trial under Fed.R.Civ.P. 59 on October 26, 1989. Despite the continued pendency of that motion, appellant also filed a notice of appeal from the district court's judgment on April 17, 1990. The district court denied the motion for a new trial the following day.

4

This court lacks jurisdiction over the appeal. Appellant's timely service of the motion for a new trial tolled the time for filing a notice of appeal. Fed.R.App.P. 4(a)(4). That rule also specifies that a notice of appeal filed during the pendency of such a time-tolling motion shall be without effect and a new notice of appeal must be filed within the prescribed time after the entry of the order disposing of that motion. Appellant, however, did not file a new notice of appeal in conformity with that rule. A timely notice of appeal is mandatory and jurisdictional. 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. It is further ORDERED that appellant's motion for a transcript at government expense and an extension of time in which to file a brief is denied as moot.

*

The Honorable William K. Thomas, U.S. Senior District Judge for the Northern District of Ohio, sitting by designation