Unpublished Dispositionkelly Gene Banner, Petitioner-appellant, v. Herman C. Davis, Warden, Respondent-appellee, 907 F.2d 150 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 907 F.2d 150 (6th Cir. 1990) June 27, 1990

Before MILBURN and DAVID A. NELSON, Circuit Judges, and LIVELY, Senior Circuit Judge.


This matter is before the court upon consideration of the appellee's motion to dismiss the appeal for lack of jurisdiction. The appellant has not responded.

A review of the documents before the court indicates that the final order was entered December 29, 1989. On January 3, 1990, and January 17, 1990, the appellant filed documents which the district court construed as motions to reconsider. After ordering a further pleading from the appellee, the district court on February 6, 1990, denied the motions to reconsider. On February 12, 1990, the appellant served yet another motion to reconsider, this time requesting reconsideration of the February 6, 1990, order. A successive motion for reconsideration does not toll the appeal period. Reed v. Toledo Area Affirmative Action Program, 715 F.2d 253, 254 (6th Cir. 1983) (per curiam), cert. denied, 469 U.S. 1221 (1985). On March 2, 1990, the district court denied the latest motion for reconsideration. Appellant appealed from that order. An order denying a Fed. R. Civ. P. 59 motion for reconsideration is not appealable. Walker v. Mathews, 546 F.2d 814, 817 n. 1 (9th Cir. 1976). Even if the notice of appeal is treated as appealing the December 29, 1989, order, this court does not have jurisdiction as the notice of appeal was not filed within the period specified in Fed. R. App. P. 4(a).

Accordingly, it is ORDERED that the motion to dismiss be, and it hereby is, granted. The appeal is dismissed for lack of jurisdiction. Rule 8, Rules of the Sixth Circuit.