Unpublished Dispositionrobert L. Smith, Plaintiff-appellant, v. Tony R. Young, David Russell, Michael Dutton, Lt. H.mccrary, D. Hindman, Rosa Johnson, Ben Miller, Andj.m. O'bane, Defendants-appellees, 826 F.2d 1065 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 826 F.2d 1065 (6th Cir. 1987) August 25, 1987



This matter is before the court upon consideration of the appellees' motion to dismiss and the appellant's response.

A review of the record indicates that the judgment of the district court was entered on April 24, 1987. A Fed. R. Civ. P. 59(e) motion for reconsideration was served on May 5, 1987, within the ten day period provided by Fed. R. Civ. P. 59(e) and computed by Fed. R. Civ. P. 6(a). The Rule 59(e) motion tolled the appeals period. Fed. R. App. P. 4(a) (4). The notice of appeal was filed on May 7, 1987. Reconsideration was denied on May 26, 1987.

At the time the May 7, 1987, notice of appeal was filed, the motion for reconsideration had not been ruled upon. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a timely Rule 59(e) motion 'shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. . . .' A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Browder v. Director, Department of Corrections, 434 U.S. 257 (1978).

It is ORDERED that the motion to dismiss be granted and that the appeal be and hereby is dismissed. Rule 8, Rules of the Sixth Circuit.