865 F. 2d 259 - May v. City of Cincinnati

Before MILBURN and ALAN E. NORRIS, Circuit Judges, and RICHARD SUHRHEINRICH, District Judge.*

Plaintiff May moves to expedite these appeals from the district court's judgment and post-trial order in this civil rights case. 42 U.S.C. Secs. 1981, 1982, 1983, and 1985(3). The defendant moves to dismiss both appeals for failure to file the appropriate briefs, and the plaintiff has responded to the motion. The appeals have been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

The plaintiff is a prolific litigant and an Orthodox Jew. The defendant is the City of Cincinnati. In his complaint, the plaintiff alleges that the city allowed anti-Jewish defamatory material to appear during a television broadcast by the cable television station licensed by the city. The plaintiff alleged that this action by the city violated his constitutional rights, and he requested over $2,000,000.00 in damages. The district court sua sponte dismissed the complaint as frivolous under 28 U.S.C. Sec. 1915(d).

On the same day, the plaintiff filed a notice of appeal and a motion for a new trial or to amend the judgment. The district court denied the motion, and the plaintiff filed a second notice of appeal. The filing of the plaintiff's motion for a new trial or to amend the judgment tolled the time for filing a notice of appeal. A notice of appeal filed before the disposition of a time-tolling motion has no effect. Fed.R.App.P. 4(a)(4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60-61 (1982) (per curiam). The plaintiff's first notice of appeal was therefore premature, and we will dismiss Case No. 88-3843 for lack of jurisdiction. We will address the merits of the plaintiff's case under the second appeal.

The district court held that the plaintiff did not state a claim under 42 U.S.C. Sec. 1983 because defamation is essentially a violation of state law. See Paul v. Davis, 424 U.S. 693, 698-99 (1976). We agree with this conclusion of the district court. We also agree with the conclusion of the district court that none of the other statutory provisions cited in the plaintiff's complaint provide the proper basis for this case.

The motions to expedite and to dismiss these appeals are denied. The appeal in Case No. 88-3843 is dismissed for lack of jurisdiction under Rule 9(b)(1), Rules of the Sixth Circuit. The judgment of the district court in Case No. 88-3868 is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.