899 F.2d 15

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee
Gary Knop; John Ford; William Lovett, II; Ramando
Valeroso; Gus Jansson; Pat Sommerville; Vernard Cohen;
Jon Spytma; Robert Shipp; Butch Davis; Ron Mixon; Kerwin
Cook, individually and on behalf of all others similarly
situated; Amici-Curiae-Appellees,
v.
STATE OF MICHIGAN; Defendant-Appellant,
James J. Blanchard, Governor of the State of Michigan, et
al., Defendants.

No. 90-1035.

United States Court of Appeals, Sixth Circuit.

April 4, 1990.

1

Before KRUPANSKY and MILBURN, Circuit Judges, and WILLIAM K. THOMAS, Senior District Judge*.

ORDER

2

The defendants in this prisoners civil rights litigation appeal those portions of two district court orders (1) requiring them to develop and implement a new classification plan, (2) requiring them to develop a population projection plan, and (3) denying their motion to restrict discovery by the amicus curiae. The plaintiff now moves to dismiss the appeal as premature. Both the defendants and amicus have responded.

3

The district court filed its orders on November 3 and 6, 1989. Pursuant to Rule 59(e), Fed.R.Civ.P., the defendants thereafter timely served and tendered to the district court a motion to reconsider or to alter the above orders. Before that order was ruled upon by the district court, the defendants filed their notice of appeal on December 4, 1989.

4

The motion to reconsider was denied on January 24, 1990 and defendants timely filed a new notice of appeal on February 23, 1990.

5

Rule 4(a)(4), Fed.R.App.P., provides that a timely Rule 59(e) motion tolls the time to file a notice of appeal until the motion is ruled upon. Any notice of appeal filed prior to such disposition has no effect. Here, the defendants' Rule 59(e) motion to reconsider filed and served on November 20, 1989 was timely, single space notwithstanding, and tolled the time to file a notice of appeal. The December 4 notice of appeal, filed before the disposition of that motion, was ineffective. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).

6

It is therefore ORDERED that plaintiff's motion to dismiss the notice of appeal filed on December 4, 1989, is granted. Defendant's notice of appeal filed on February 23, 1990 is timely.

*

The Honorable William K. Thomas, Senior U.S. District Judge for the Northern District of Ohio, sitting by designation