Clay Jackson Myers, Jr., Plaintiff-appellant, v. John Verkamp, et al., Defendants-appellees, 990 F.2d 1259 (9th Cir. 1993)

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U.S. Court of Appeals for the Ninth Circuit - 990 F.2d 1259 (9th Cir. 1993)

Submitted March 23, 1993. *Decided March 26, 1993


Before: WALLACE, Chief Judge, and FARRIS and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Clay Jackson Myers, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 prisoner civil rights complaint. We dismiss for lack of appellate jurisdiction.

The requirement of a timely notice of appeal is mandatory and jurisdictional. See Fed. R. App. P. 4(a); Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). A notice of appeal is jurisdictionally invalid if it is filed before the disposition of a timely motion brought pursuant to Fed. R. Civ. P. 59(e). See Fed. R. App. P. 4(a) (4); Tripati v. Henman, 845 F.2d 205, 206 (9th Cir. 1988). Thus, this court has held that when a litigant files a notice of appeal one day and then files a timely Rule 59(e) motion on the next day, the notice of appeal is "not merely defective; it [is] a nullity." Id. (citation and quotation omitted).

Here, Myers filed his notice of appeal and timely Rule 59(e) motion simultaneously. Under Tripati, his notice of appeal is a nullity. See id. Accordingly, this court lacks jurisdiction over Myers' appeal.

This appeal is dismissed for lack of jurisdiction.

DISMISSED.

 *

The panel finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3