Unpublished Dispositionhenry L. Stepler, Plaintiff-appellant, v. Ohio Adult Parole Authority; Raymond E. Capots; Wilson;john Jones, Supervisor for Parole Officers Inguernsey County, Defendants-appellees, 905 F.2d 1539 (6th Cir. 1990)

ORDER

This matter is before the court upon consideration of the appellees' motion to dismiss the appeal for lack of jurisdiction. The appellant has responded and filed motions for appointment of counsel, bail pending appeal, and an injunction.

A review of the record indicates that the civil action was dismissed by judgment entered November 14, 1989. A motion for relief from judgment was served on November 20, 1989. Appellant's motion for leave to proceed on appeal in forma pauperis was filed January 5, 1990, and treated as a notice of appeal. The motion for relief from judgment was denied by order entered January 16, 1990.

A motion which seeks reconsideration of a judgment and which is served within ten days of entry of a judgment is properly construed as a time-tolling Fed. R. Civ. P. 59(e) motion. The motion for relief was served within ten days of entry of the judgment and tolled the appeal period. See Fed. R. App. P. 4(a) (4); Osterneck v. Ernst & Whinney, 109 S. Ct. 987, 992 (1989); Rados v. Celotex Corp., 809 F.2d 170, 171 (2d Cir. 1986); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668-69 (5th Cir.) (en banc), cert. denied, 479 U.S. 930 (1986). Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a timely Rule 59 motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The appellant did not file a new notice of appeal after entry of the order denying relief from the judgment.

It is ORDERED that the motion to dismiss be granted and the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 8, Rules of the Sixth Circuit. The motions for appointment of counsel, bail and injunction are denied.