OpenJurist

919 F2d 738 Kittrell v. Drummond

919 F.2d 738

Thomas E. KITTRELL, Plaintiff-Appellant,
v.
John DRUMMOND, Detective Sergeant, Richard Lanski, Officer,
David Teolis, Officer, Defendants-Appellees.

No. 90-1821.

United States Court of Appeals, Sixth Circuit.

Dec. 6, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 WELLFORD and ALAN E. NORRIS, Circuit Judges, and FORESTER, District Judge*.

ORDER

2

This matter is before the court upon consideration of the appellant's motion for appointment of counsel.

3

A review of the record indicates that the judgment was entered June 25, 1990. The appellant filed a motion to alter or amend or a notice of appeal in the district court on July 9, 1990, which was within ten days of entry of judgment as computed pursuant to Fed.R.Civ.P. 6(a). Such motion tolled the appeal period. See Fed.R.App.P. 4(a)(4); Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir.1988), cert. denied, 109 S.Ct. 2436 (1989). That same document evinces appellant's desire to appeal and is treated as such. Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a timely Rule 59 motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The district court has not ruled on the motion to alter or amend.

4

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

*

The Honorable Karl S. Forester, U.S. District Judge for the Eastern District of Kentucky, sitting by designation