Kay A. Kinsley, Plaintiff-appellant, v. Berea Board of Education; Kenneth Hartz, Individually Andin His Official Capacity As Principal of Brookviewelementary School, Defendants-appellees, 952 F.2d 403 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 952 F.2d 403 (6th Cir. 1991) Oct. 1, 1991

Before BOYCE F. MARTIN, JR. and NATHANIEL JONES, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.


The plaintiff appeals the dismissal of this action under 42 U.S.C. § 1983 action in which she alleges retaliation in employment conditions for her exercise of First Amendment rights. The district court entered its order dismissing the action on July 19, 1991. Within ten days, as calculated pursuant to Fed. R. Civ. P. 6(a), the plaintiff filed a motion for clarification, reconsideration, and/or to set aside the judgment in part. While that motion was pending, the plaintiff filed a notice of appeal which was docketed in this court as Case No. 91-3770. An order to show cause why the appeal should not be dismissed as premature was entered on September 3, 1991. The plaintiff responded that she had filed an amended notice of appeal following the district court's disposition of the motion. That appeal has now been docketed in this court as Case No. 91-3831. The plaintiff moves to consolidate both appeals.

A notice of appeal filed during the pendency of a timely motion to alter or amend is of no effect. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). A new notice of appeal must be filed within the appeal period commencing with the district court's disposition of the time-tolling motion. Fed. R. App. P. 4(a) (4). Therefore, this court lacks jurisdiction in Case No. 91-3770. The notice of appeal in Case No. 91-3831 is sufficient to bring the district court's judgment to this court for review.

It is therefore ORDERED that Case No. 91-3770 is dismissed sua sponte for lack of jurisdiction. Case No. 91-3831 shall continue upon the docket. The motion to consolidate is denied as moot.