Unpublished Disposition, 848 F.2d 198 (9th Cir. 1987)

MEMORANDUM^** 

Paul L. Browning, proceeding pro se, appeals the district court's order denying his motion for a preliminary injunction and dismissing his 42 U.S.C. § 1983 action against Clark County Detention Center (CCDC) officials. Because of a jurisdictional defect, we must dismiss the appeal for lack of jurisdiction.

On September 29, 1986, Browning, who was then awaiting trial on a murder charge, filed suit against CCDC officials pursuant to 42 U.S.C. § 1983. Browning alleged various violations of his constitutional rights. The gravamen of his complaint was that CCDC officials had denied him access to the courts by restricting his use of the prison law library. On October 23, 1986, Browning filed a motion for an "emergency hearing" and a preliminary injunction, again raising the law library issue and claiming that CCDC officials had "rifled" through his legal mail. On December 11, 1986, Browning filed a motion for summary judgment and requested that the court award him attorney's fees, impose sanctions on CCDC officials, and allow him access to the prison law library.

On January 13, 1987, the district court denied Browning's motion for a preliminary injunction and dismissed Browning's Sec. 1983 complaint. On January 21, 1987, Browning filed a petition for rehearing with the district court. Two days later, on January 23, 1987, before the district court had ruled on the petition for rehearing, Browning filed a notice of appeal.

Neither of the parties have questioned our jurisdiction over Browning's appeal. Nonetheless, we must, sua sponte, determine whether jurisdiction properly rests with this court. In re Christian Life Center, 821 F.2d 1370, 1373 (9th Cir. 1987). If a notice of appeal is filed while a timely post-judgment motion is still pending before the district court, the notice of appeal is a legal nullity. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam); Bestran Corp. v. Eagle Comtronics, Inc., 720 F.2d 1019 (9th Cir. 1983). For this court to have jurisdiction, an appellant must file a new notice of appeal after the district court has ruled on the post-judgment motion. Fed. R. App. P. 4(a) (4). In this case, Browning filed his notice of appeal before the district court had ruled on his motion for reconsideration. Therefore, his notice of appeal is invalid. We dismiss the appeal for lack of jurisdiction.

DISMISSED.