Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1224 (9th Cir. 1989)

Michael Henry FERDIK, Plaintiff-Appellant,v.ARIZONA BOARD OF PARDONS, et al., Defendants-Appellees.

No. 89-16043.

United States Court of Appeals, Ninth Circuit.

Submitted March 26, 1990.* Decided April 3, 1990.

Appeal from the United States District Court for the District of Arizona; William P. Copple, Senior District Judge, Presiding.

D. Ariz.

DISMISSED.

Before FLETCHER, LEAVY and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Michael Henry Ferdik, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action as frivolous. We dismiss his appeal to this court as untimely.

The requirement of a timely notice of appeal is mandatory and jurisdictional. Browder v. Director, Dept. of Corrections, 434 U.S. 257 (1978). A party in a civil action must file a notice of appeal within thirty days of the entry of the judgment or order from which the party is appealing. Fed. R. App. P. 4(a) (1). Here, the district court's dismissal of Ferdik's section 1983 action was entered on April 28, 1989, and Ferdik filed a notice of appeal on July 12, 1989. His notice of appeal therefore appears to be untimely.

If, however, Ferdik filed a timely motion to alter or amend the judgment under Fed. R. Civ. P. 59(e), the time limit for filing his notice of appeal would have been tolled until entry of the order granting or denying the motion. See Fed. R. App. P. 4(a) (4) (iii). To be timely under Fed. R. Civ. P. 59(e), the motion must be served not later than ten days after entry of the judgment.

Ferdik filed a motion to reconsider, which was dated May 16, 1989. Even if we construe this motion as a 59(e) motion, it was not timely.1  To be timely, Ferdik's motion had to be served on or before May 12, 1989. See Fed. R. Civ. P. 6(a). Therefore, Ferdik's appeal to this court was not timely.

DISMISSED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Ferdik did not characterize his motion as being brought under Rule 59(e), but labeled it "Motion of Reconsideration of Judgment." We can construe this motion as brought under 59(e). See Whittaker v. Whittaker Corp., 639 F.2d 516, 520-21 (9th Cir.), cert. denied, 454 U.S. 1031 (1981)