jerry-brice-v-shirley-sharp-administrator-of-offender-records-in-her ( 1991 )

928 F.2d 1132

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Jerry BRICE, Plaintiff-Appellant,
v.
Shirley SHARP, Administrator of Offender Records, in her
Individual Capacity; John D. Runda, Chairman,
Kentucky Parole Board, in his Individual
Capacity, Defendants-Appellees.

No. 91-5255.

United States Court of Appeals, Sixth Circuit.

March 26, 1991.

E.D.Ky., 90-00085, Bertelswan, J.

E.D.Ky.

APPEAL DISMISSED.

Before KEITH and BOYCE F. MARTIN, Jr., Circuit Judges, and CONTIE, 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 judgment of the district court was entered February 4, 1991, dismissing the civil rights action. The complaint was never served upon the defendants. On February 19, 1991, plaintiff filed a motion for reconsideration and a notice of appeal.

3

This court lacks jurisdiction in this appeal. The Fed.R.Civ.P. 59 motion for reconsideration was filed in the district court within ten days as calculated pursuant to Fed.R.Civ.P. 6(a) and tolled the appeal period as provided by Fed.R.App.P. 4(a)(4). Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir.1988), cert. denied, 490 U.S. 1093 (1989). Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a timely Rule 59 motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). A new notice of appeal must be filed after entry of the ruling on the motion for reconsideration.

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.