Unpublished Dispositiondaries Sherrills, Plaintiff-appellant, v. John T. Corrigan, Prosecutor, et al., Defendants-appellees, 918 F.2d 958 (6th Cir. 1990)

ORDER

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Appellant now moves for leave to proceed in forma pauperis.

Review of the record discloses that the district court entered an order dismissing appellant's civil rights action for reason of frivolity under 28 U.S.C. § 1915(d) on June 20, 1990. Less than ten days after that action, as computed under Fed. R. Civ. P. 6(a), appellant served and filed a "Motion to Re-Direct and Wave (sic) Strict Compliance" which the district court construed as a motion to reconsider its earlier order pursuant to Fed. R. Civ. P. 59(e). Accordingly, appellant's motion tolled the running of the time for filing a notice of appeal. Fed. R. App. P. 4(a) (4). Despite the continued pendency of that motion, however, appellant filed a notice of appeal on July 5, 1990.

This court does not have jurisdiction over the appeal. Fed. R. App. P. 4(a) (4) specifies that a notice of appeal filed prior to the disposition of a timely motion pursuant to Fed. R. Civ. P. 59(e) is without effect. Rather, appellant may obtain appellate review of the dismissal of his cause of action by filing a new notice of appeal within the time provided in Fed. R. App. P. 4(a) (1) as measured from the date of the entry of an order ruling on the motion to reconsider. A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam); Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978).

Accordingly, it is ORDERED that the appeal is hereby dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit. Furthermore, the motion for leave to proceed in forma pauperis is denied as moot.