815 F2d 702 Coburn v. Brown & Williamson Tobacco Company

815 F.2d 702

Billie Joe COBURN, Plaintiff-Appellant,
v.
BROWN & WILLIAMSON TOBACCO COMPANY; American Tobacco
Company; R.J. Reynolds Tobacco Company; Ohio
Valley Wholesale Company, Defendants-Appellees.

No. 86-4074.

United States Court of Appeals, Sixth Circuit.

March 24, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before ENGEL and GUY, Circuit Judges, and PECK, Senior Circuit Judge.

ORDER


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1

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the defendant's motion to dismiss, the plaintiff's informal brief and the record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

2

The defendant's motion to dismiss the appeal for lack of jurisdiction is not well taken. Any notice of appeal from the September 10, 1986, judgment was due to be filed on or before October 10, 1986. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure. On September 24, 1986, the plaintiff sought leave to appeal which was granted on November 14, 1986. A document entitled as a notice of appeal was filed November 21, 1986. This Court has generally adopted a liberal construction of pleadings where a party has expressed a desire to appeal. Cf. Jackson v. TVA, 595 F.2d 1120 (6th Cir.1979). Although the November 21 notice of appeal was filed late, the plaintiff evinced his intent to appeal by filing a motion for leave to appeal only fourteen days after the judgment was entered.

3

The plaintiff's civil rights complaint filed in the district court alleged that by selling tobacco products at the Southern Ohio Correctional Facility the defendants have subjected him to physical harm. The district court determined that the complaint failed to state a cause of action and dismissed it as frivolous pursuant to 28 U.S.C. Sec. 1915(d). A review of the record indicates that the district court did not err in dismissing the action.

4

It is ORDERED that the motion to dismiss be denied and the judgment of the district court affirmed for the reasons stated in the district court's decision. Rule 9(b)(5), Rules of the Sixth Circuit.