Unpublished Dispositionjames E. Brown, Plaintiff-appellant, v. Federal Correctional Institution, Defendant-appellee, 798 F.2d 468 (6th Cir. 1986)

ORDER

This matter is before the Court for consideration of appellant's response to this Court's order of April 29, 1986, to show cause why this appeal should not be dismissed as untimely filed.

In October 29, 1985, the district court entered a judgment which dismissed appellant's complaint of October 15, 1985, in this prisoner civil rights action. On November 4, 1985, the appellant filed a motion for judgment notwithstanding the verdict. The appellant filed his notice of appeal from the district court judgment on December 31, 1985. The district court denied the motion for judgment notwithstanding the verdict on March 6, 1986.

Absent any time tolling motions, the notice of appeal was due December 30, 1985. Rule 4(a) (1), Federal Rules of Appellate Procedure. If the motion for judgment notwithstanding the verdict is construed as a motion under Rule 59, Federal Rules of Civil Procedure, the notice of appeal is premature. Rule 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). If the motion for judgment notwithstanding the verdict is construed as a motion under Rule 60, Federal Rules of Civil Procedure, the time for filing the notice of appeal would not be tolled and the appeal is one day late. Rule 4(a) (4); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983).

In his response to show cause order, appellant fails to establish that this appeal should not be dismissed. Therefore, it is ORDERED that this appeal be dismissed as jurisdictionally defective.