Unpublished Dispositionmonroe E. Davis, Plaintiff-appellant, v. William P. Morris, Jr., Jack E. Owens, Sheriff, A.c. Gillis,chief Deputy, Defendants,danny Turner, Deputy Jailer, Defendant-appellee, 940 F.2d 659 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 940 F.2d 659 (6th Cir. 1991)

Aug. 9, 1991


Before NATHANIEL R. JONES and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.


ORDER

This matter is before the court upon consideration of the appellee's motion to dismiss the appeals taken from the ruling denying relief from judgment. Such motion argues that appellant failed to appeal the final decision of the district court within the period provided by Fed. R. Civ. P. 4(a). Appellant has failed to respond.

A review of the documents before the court indicates that the judgment of the district court dismissing the civil rights action was entered on March 20, 1991. Appellant filed a motion for relief from judgment on March 27, 1991, which was served March 25, 1991. Such motion was denied by ruling entered April 18, 1991. Appellant appealed the ruling on May 14, 1991 (appeal No. 91-5650) and May 16, 1991 (appeal No. 91-5651).

Although the motion for relief refers to Fed. R. Civ. P. 60(b), it seeks reconsideration of the decision and was served within 10 days of entry of the decision. Therefore, it is properly construed as a time-tolling Fed. R. Civ. P. 59(e) motion. White v. New Hampshire Dep't of Empl. Sec., 455 U.S. 445, 451 (1982); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir.) (en banc), cert. denied, 479 U.S. 930 (1986). Although the denial of a Fed. R. Civ. P. 59 motion is not appealable, the appeal can be treated as an appeal from the judgment where the motion tolled the appeal period. Peabody Coal Co. v. Local Union Nos. 1734, 1508 & 1548, UMW, 484 F.2d 78, 81 (6th Cir. 1973). The appeal period was tolled pursuant to Fed. R. App. P. 4(a) (4) and the notices of appeal filed May 14, 1991, and May 16, 1991, from the ruling entered April 18, 1991, denying relief are sufficient to give this court jurisdiction to review the March 20, 1991, judgment.

Accordingly, it is ORDERED that the motion to dismiss be, and it hereby is, denied. However, it is ORDERED that appeal No. 91-5651 be, and it hereby is, dismissed. Rule 8(a), Rules of the Sixth Circuit. Appeal Nos. 91-5650 and 91-5651 are duplicate appeals from the same decision. Any issues which appellant wishes to raise on appeal may be presented in appeal No. 91-5650.