Willie Stevenson, Plaintiff-appellant, v. the City of Kansas City, Kansas, Defendant-appellee, 5 F.3d 547 (10th Cir. 1993)

This matter is before the court for consideration of summary dismissal on jurisdictional grounds. For the reasons that follow, we conclude appellate jurisdiction is lacking and, accordingly, dismiss the appeal.

Following dismissal of his pro se civil rights action as frivolous under 28 U.S.C.1915(d), plaintiff filed a "Motion to Reconsider Order or In the Alternative, Enter an Enterlocutory [sic] Appeal." Since this motion was served within the time limits established for motions to alter or amend judgment, see Fed. R. Civ. P. 59(e); see also Fed. R. Civ. P. 5(b) (service by mail complete upon mailing) & 6(a) (intermediate Saturdays and Sundays excluded from time periods less than 11 days), the request for reconsideration of the district court's dismissal order is deemed a Rule 59(e) motion. See, e.g., Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 113 S. Ct. 89 (1992); Dalton v. First Interstate Bank of Denver, 863 F.2d 702, 704 (10th Cir. 1988). As such, it nullifies plaintiff's simultaneous attempt to notice an appeal from the same order. See Skagerberg v. Oklahoma, 797 F.2d 881, 883 (10th Cir. 1986) ("when a timely Rule 59(e) motion and a notice of appeal are combined in one document the notice of appeal is premature and has no effect"). We therefore lack jurisdiction over the present appeal. See id. See generally Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60-61 (1982). Plaintiff must obtain a ruling on the motion and then file a new notice of appeal in accordance with Fed. R. App. P. 4(a) (1). Skagerberg, 797 F.2d at 883.

Accordingly, the appeal is DISMISSED and plaintiff's motion for leave to appeal in forma pauperis is DENIED.

The mandate shall issue forthwith.