James Green v. Gary Livesay Otie Jones Susan Hiatt Stanley Shank Dr. Littell , 916 F.2d 712 ( 1990 )

916 F.2d 712

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
James GREEN, Plaintiff-Appellant,
v.
Gary LIVESAY; Otie Jones; Susan Hiatt; Stanley Shank;
Dr. Littell, Defendants-Appellees.

No. 90-5984.

United States Court of Appeals, Sixth Circuit.

Oct. 15, 1990.

1

Before WELLFORD and DAVID A. NELSON, Circuit Judges; and JOINER, 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 the appointment of counsel.

3

Review of the record indicates that the district court entered an order dismissing appellant's civil rights action on June 29, 1990. Appellant subsequently served a motion to reconsider that order pursuant to Fed.R.Civ.P. 59 on July 5, 1990. That event occurred within the ten day period prescribed by Fed.R.Civ.P. 59(e), as computed under Fed.R.Civ.P. 6(a), and therefore tolled the running of the time for filing a notice of appeal. Despite the continued pendency of that motion, appellant filed a notice of appeal on July 17, 1990. On July 23, 1990, the district court denied the motion to reconsider.

4

This court lacks jurisdiction over the appeal. Fed.R.App.P. 4(a)(4) specifies that a notice of appeal filed prior to the disposition of a timely motion pursuant to Fed.R.Civ.P. 59(e) is without effect. Rather, a new notice of appeal must be filed within the time provided in Fed.R.App.P. 4(a)(1) as measured from the date of the entry of the order ruling on the motion to reconsider. 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 dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit. Furthermore, the motion for appointment of counsel is denied as moot.

*

The Honorable Charles W. Joiner, Senior District Judge for the Eastern District of Michigan, sitting by designation