Jose Mendez, Plaintiff-appellant, v. James Gomez, L. Jones, Warden of North Kern State Prison;r--program Administrator; Sergeant Mcewen; J--brown,officer; J--brown Officer; G--officer; Big Cdccorrectional Officer; D--chief Medical Officer Andmr--medical Trained Assistant, Defendants-appellees, 51 F.3d 281 (9th Cir. 1995)

MEMORANDUM^** 

Jose Mendez, a California state prisoner, appeals pro se the district court's dismissal without prejudice of his 42 U.S.C. § 1983 action on grounds that his complaint failed to contain a short and plain statement of his claims, as required by Fed. R. Civ. P. 8(a) (2). We dismiss Mendez's appeal for lack of jurisdiction.

Fed. R. App. P. 4(a) (4) provides that a notice of appeal from a judgment, filed during the pendency of a Fed. R. Civ. P. 59(e) motion, shall be held in abeyance and become effective upon the date of entry of the order disposing of Rule 59(e) motion. Fed.App.P. 4(a) (4); Schroeder v. McDonald, 41 F.3d 1272, 1276 (9th Cir. 1994). Thus, this court is without jurisdiction to review the underlying judgment until the date of the entry of the order disposing of the Rule 59(e) motion.

Here, the district court entered its judgment dismissing Mendez's action on June 24, 1994. On July 5, 1994, Mendez served on the defendants a timely motion to vacate the judgment.¹  On July 7, 1994, Mendez filed his notice of appeal from the underlying judgment.

We lack jurisdiction over this appeal because Mendez's Rule 59(e) motion to vacate the judgment is still pending in the district court. See Fed. R. App. P. 4(a) (4); Schroeder, 41 F.3d at 1276.

DISMISSED.