Unpublished Dispositionroger Harrison, Plaintiff-appellant, v. Michigan Department of Corrections, Defendant-appellee, 863 F.2d 48 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 863 F.2d 48 (6th Cir. 1988) Nov. 17, 1988

Before ENGEL, Chief Judge and WELLFORD and BOGGS, Circuit Judges.


ORDER

This matter 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 judgment of the district court was filed on August 26, 1988 and entered on August 31, 1988. The plaintiff's motion entitled "Petition for Reconsideration and/or Application to Appeal to the 6th Circuit" was served on August 29, and filed September 1, 1988. This motion was served within the ten day period prescribed by Fed. R. Civ. P. 59(e) as computed by Fed. R. Civ. P. 6(a), and tolled the appeals period. The 59(e) motion was denied by an order filed on September 2, and entered September 6, 1988. The notice of appeal contained in the 59(e) motion was filed on September 1, 1988, prior to the disposition of that motion.

In his pro se brief, plaintiff seeks appointment of counsel in this appeal.

This court lacks jurisdiction in this appeal. 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, 61 (1982); Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978).

It is ORDERED that the motion for appointment of counsel be denied, and the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.