785 F2d 309 Roger Patrick Jude Kearney III v. Director of Department of Corrections B Brown Jr

785 F.2d 309

ROGER PATRICK JUDE KEARNEY, III, Plaintiff-Appellant
v.
DIRECTOR OF DEPARTMENT OF CORRECTIONS, B. BROWN, JR.; K.C.F.
DAN BOLDEN, MICHIGAN CORRECTIONAL ORGANIZATION
INTERNATIONAL, AFL-CIO; RESIDENT UNIT OFFICER, T. BEUTZ
#065, KIEVIT #243, RIGOTTI #179, SRGT L. TASHI #135,
INSPECTOR LIVIGNE OF PROPERTY AND GROVER OF PROPERTY (A RUM)
SEAMS #120, WATSON #018 HANDCOCK #240 AND OTHERS YET TO BE
INDENTIFIED BY NAMES AS EMPLOYEES OF DEPARTMENT OF
CORRECTIONS AND AGENTS OF GOVERNMENT OF STATE, Defendants-Appellees.

85-1174

United States Court of Appeals, Sixth Circuit.

1/10/86

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

ORDER

BEFORE: MERRITT, JONES and WELLFORD, Circuit Judges.


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1

Kearney appeals pro se from the district court's judgment dismissing his civil rights complaint without prejudice. This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. This Court finds that there is a jurisdictional defect in the appeal.

2

Kearney filed a timely motion to vacate after the judgment was entered. This motion extended the time in which to file a notice of appeal. Rule 4(a)(4), Federal Rules of Appellate Procedure. However, Kearney filed his notice of appeal while the motion to vacate judgment was still pending. Such a notice of appeal has no effect. Rule 4(a)(4), Federal Rules of Appellate Procedure; Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60-61 (1982). Therefore, Kearney's appeal is jurisdictionally defective.

3

The filing of a timely notice of appeal is mandatory and jurisdictional, and the Court of Appeals cannot waive the jurisdictional requirement. Browder v. Director, Department of Corrections, 434 U.S. 257, 264 (1978). So Kearney's appeal is sua sponte dismissed for lack of jurisdiction under Rule (d)(1), Rules of the Sixth Circuit.