Unpublished Dispositiondanny Cathey, Plaintiff-appellant, v. Henry Drescher, Defendant-appellee, 905 F.2d 1537 (6th Cir. 1990)

ORDER

This matter is before the court upon consideration of the appellee's motion to dismiss. Appellant has failed to respond.

A review of the record indicates that the district court dismissed the action as frivolous pursuant to 28 U.S.C. § 1915(d) and entered judgment on September 29, 1989. A motion to reopen and amend the decision pursuant to Fed. R. Civ. P. 52 and 59 was dated October 26, 1989, and filed November 1, 1989. Such motion was not served within the ten days of entry of judgment as required by Fed. R. Civ. P. 52 and 59 and failed to toll the appeal period. See Fed. R. App. P. 4(a) (4). The motion was denied by ruling on October 31, 1989, and appellant appealed from such ruling on November 15, 1989.

This court lacks jurisdiction in this appeal. An order denying a motion to reconsider a decision is not appealable. Walker v. Mathews, 546 F.2d 814, 817 n. 1 (9th Cir. 1976); Peabody Coal Co. v. Local Union Nos. 1734, 1508 & 1548, UMW, 484 F.2d 78, 81 (6th Cir. 1973).

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