Page:United States Reports 502 OCT. TERM 1991.pdf/404

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SMITH v. BARRY Opinion of the Court

claim, and for the administrators and three officers on his excessive force claim. The jury ultimately rejected Smith’s excessive force claim against the four remaining officers. However, it found that the staff psychologists were deliberately indifferent to Smith’s medical needs and awarded $15,000 in damages. The two psychologists filed a timely motion for judgment notwithstanding the verdict (J. N. O. V.). Without consulting his attorney, and while the motion for J. N. O. V. was pending, Smith filed a notice of appeal. Smith’s trial counsel learned of the notice of appeal after the District Court denied the psychologists’ motion. In a letter dated April 21, 1988, he wrote Smith: “I am certain from the circumstances that [the notice of appeal] is premature and thus void. “. . . The Order denying the Motion for J. N. O. V. was entered April 13, 1988. This would give you up until May 13, 1988 before you must file an appeal. I would urge you to take by [sic] advice and not file an appeal, or at least seek a second legal opinion on the matter.” App. 17. Smith’s notice of appeal was in fact invalid under Federal Rule of Appellate Procedure 4(a)(4), which provides that a notice of appeal filed before the disposition of a timely J. N. O. V. motion is without effect. Although the Fourth Circuit’s jurisdiction had not been properly invoked, its Clerk responded to the notice of appeal by sending all of the parties copies of the “informal brief ” the court uses in pro se appeals and an order explaining the court’s procedures. The briefing forms asked the parties to answer six questions about their legal positions. Under its Rules, the Fourth Circuit reviews these responses and the record to determine whether appointment of counsel and/or oral argument are warranted. See CA4 Rule 34(b). Smith returned his infor-