Unpublished Dispositionpaul Larry Freshour, Plaintiff-appellant, v. Dwight Radcliff, Defendant-appellee, 836 F.2d 549 (6th Cir. 1987)

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U.S. Court of Appeals for the Sixth Circuit - 836 F.2d 549 (6th Cir. 1987) Dec. 29, 1987



This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the record indicates that the decision of the district court granting summary judgment in favor of the defendant in this civil rights action was entered on July 16, 1987. Two Fed. R. Civ. P. 59(e) motions to alter or amend judgment were served on July 21, 1987, and filed on July 22, 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) motions tolled the running of the appeal period. Fed. R. App. P. 4(a) (4). The notice of appeal was filed on August 13, 1987. The Rule 59(e) motions were denied on August 20, 1987.

At the time the notice of appeal was filed, the district court had not yet ruled upon the motions to alter or amend. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the timely 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 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 of Illinois, 434 U.S. 257 (1978).

Accordingly, it is ORDERED that the appeal be dismissed for lack of jurisdiction as premature. Rule 9(b) (1), Rules of the Sixth Circuit.