Unpublished Dispositionronnie Lee Alston, Petitioner-appellant, v. John Gluch, Respondent-appellee, 889 F.2d 1086 (6th Cir. 1989)

Before KRUPANSKY and RYAN, Circuit Judges, and EDWARD H. JOHNSTONE, Chief District Judge^* .

ORDER

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

A review of the record indicates that the decision of the district court was filed on August 29, 1989, and entered September 5, 1989. Appellant served a Fed. R. App. P. 59(e) motion to alter or amend the judgment on September 3, 1989, by submitting it to a prison official for mailing. The Rule 59(e) motion was served within ten days of entry of judgment and tolled the appeal period. See Fed. R. App. P. 4(a) (4); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir. 1988). The September 18, 1989, notice of appeal filed prior to the ruling on the Rule 59 motion is premature. 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 new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion...." A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 109 S. Ct. 987, 990 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam).

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.