Donald Francis Mackay, Jr., Plaintiff-appellant, v. Sessoms Goss, Defendant-appellee, 825 F.2d 407 (4th Cir. 1987)

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U.S. Court of Appeals for the Fourth Circuit - 825 F.2d 407 (4th Cir. 1987) Submitted June 11, 1987. Decided July 13, 1987

Donald Francis Mackay, Jr., appellant pro se.

Before HALL, ERVIN and CHAPMAN, Circuit Judges.


Donald F. Mackay, Jr., sued various employees of the Veterans Administration Medical Center in Hampton, Virginia, alleging that these defendants violated his constitutional rights by placing Mackay in 'restriction' for one week after Mackay placed a 'note of introduction' on an employee's windshield. The district court ordered the complaint filed and dismissed as frivolous on 27 January 1987.

On 17 February 1987, Mackay filed a motion for 'misstrial [sic].' The district court construed this motion as one made pursuant to Fed. R. Civ. P. 59, and, after reviewing the case, denied the motion on 17 February. On 24 February Mackay again filed a motion seeking relief. The district court denied this motion on 3 March and Mackay filed a notice of appeal on 3 March 1987.

We find that the appeal is untimely and dismiss the appeal. Judgment was entered on 27 January 1987. Mackay's motion for mistrial was filed on 17 February, outside the ten-day period set forth in Fed. R. Civ. P. 59(e) for Rule 59 motions for new trials.*  The appeal period was thus not tolled. See Fed. R. App. P. 4(a) (4). The notice of appeal filed on 3 March 1987 was untimely and this Court lacks jurisdiction to consider Mackay's claims. Shah v. Hutto, 722 Fed. 1167, 1168 (4th Cir. 1983) (en banc), cert. denied, 466 U.S. 975 (1984).

We dispense with oral argument because the dispositive issues have recently been authoritatively decided.



Mackay's mistrial motion is stamped as having been received in the district judge's chambers on 11 February 1987; this date is also outside the ten-day period allowed by Rule 59(e)