James Godsey v. Dewey Sowders, David Conley, Jim Morgan , 925 F.2d 1463 ( 1991 )

925 F.2d 1463

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 GODSEY, Plaintiff-Appellant,
v.
Dewey SOWDERS, David Conley, Jim Morgan, Defendants-Appellees.

No. 91-5086.

United States Court of Appeals, Sixth Circuit.

Feb. 21, 1991.

Before DAVID A. NELSON and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.

ORDER

1

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

2

A review of the documents before the court indicates that the magistrate partially denied leave to proceed in the district court in forma pauperis. The district court by order filed July 12, 1990, denied plaintiff's objections to the magistrate's order. Plaintiff's response to the July 12 order and notice of appeal was mailed on July 22, 1990, and filed July 25, 1990. By order filed September 21, 1990, the magistrate directed that plaintiff supply the court with additional information regarding his financial status. The magistrate filed a report and recommendation on November 15, 1990. The district court adopted the magistrate's report and recommendation and denied leave to proceed in forma pauperis in the district court.

3

The notice of appeal filed July 25, 1990, is premature. Although the district court treated the response and notice of appeal served July 22, 1990, as a Fed.R.Civ.P. 60(b) motion, such document was served within ten days of the July 12, 1990, order partially denying leave to proceed in forma pauperis. Therefore, it is properly treated as a time-tolling Fed.R.Civ.P. 59(e) motion for reconsideration. White v. New Hampshire Dep't of Empl. Sec., 455 U.S. 445, 451 (1982); Moody v. Pepsi-Cola Metropolitan Bottling Co., 915 F.2d 201, 206 (6th Cir.1990); United States v. Cooper, 876 F.2d 1192, 1195 (5th Cir.1989) (per curiam); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988); Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir.1988), cert. denied, 109 S. Ct. 2436 (1989). Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a Fed.R.Civ.P. 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 by order entered and filed December 3, 1990, denied leave to proceed in the district court in forma pauperis. No appeal was filed after entry of the December 3 order.

4

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.