othello-b-wallace-jr-v-memphis-housing-authority-memphis-police , 920 F.2d 934 ( 1990 )

920 F.2d 934

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Othello B. WALLACE, Jr., Plaintiff-Appellant,
v.
MEMPHIS HOUSING AUTHORITY, Memphis Police Department,
Lawrence S. Wade, Charles R. Conway, Harold
Whalum, Joseph Shearer, Samuel L.
Johnson, James Bolden,
Defendants-Appellees.

No. 90-6163.

United States Court of Appeals, Sixth Circuit.

Dec. 14, 1990.

Before MERRITT, Chief Judge, and NATHANIEL R. JONES and WELLFORD, Circuit Judges.

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 record indicates that the district court dismissed this civil rights action by order entered June 28, 1990, and judgment entered August 13, 1990. Wallace filed a document entitled as a notice of appeal in which he sought the district court to reconsider its decision. By order entered August 27, 1990, the district court treated the notice of appeal as a Fed.R.Civ.P. 59(e) motion to alter or amend, denied such motion, and directed that Wallace file a new notice of appeal if he desired to appeal. No new notice of appeal was filed.

3

The document entitled as a notice of appeal was properly treated by the district court as a Fed.R.Civ.P. 59(e) motion. Appellant in the notice of appeal did not specify that he was seeking an appeal to this court as required by Fed.R.App.P. 3(c). However, such document did seek reconsideration of the district court's decision and was served within the time provided by Fed.R.Civ.P. 59(e). Such motion was properly treated as a Fed.R.Civ.P. 59(e) motion and tolled the appeal period as provided by Fed.R.App.P. 4(a)(4). See 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). In the order entered August 27, 1990, the district court advised Wallace that the notice of appeal was being treated as a Fed.R.Civ.P. 59(e) motion, denied the motion, and advised Wallace to file a new notice of appeal if he desired to appeal. No new notice of appeal was filed. 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).

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.