Unpublished Dispositionray Darris Thompson, Plaintiff-appellant, v. Benjamin Poindexter, Warden and Nikki Lentz, Librarian,defendants-appellees, 762 F.2d 1012 (6th Cir. 1985)

This matter is before the Court upon consideration of the appellant's response to this Court's show cause order.

It appears from the record that the judgment was entered November 19, 1984. A motion to reconsider or, in the alternative, notice of appeal was untimely served on December 4, 1984, and filed on December 7, 1984. The untimely served Rule 59(e), Federal Rules of Civil Procedure, motion for reconsideration did not toll the appeals period. Reconsideration was denied on December 28, 1984. The notice of appeal filed on January 23, 1985 was 35 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure.

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First Nat. Bank and Trust Co. of Marquette, 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

This Court has generally adopted a liberal construction of pleadings to find jurisdiction where a party has expressed a desire to appeal from a final judgment. Jackson v. TVA, 595 F.2d 1120 (6th Cir. 1979). Although the motion to reconsider or, in the alternative, notice of appeal was not timely served and did not toll the appeals period, it can be treated as a notice of appeal filed December 7, 1984. The December 7 notice of appeal was filed within the appeals period permitted by Rule 4(a), Federal Rules of Appellate Procedure, but it has not yet been docketed in this Court.

It is ORDERED that appeal no. 85-5103 taken from the January 23, 1985, notice of appeal be and it hereby is dismissed for lack of jurisdiction. Rule 9(d) (1), Rules of the Sixth Circuit. The Clerk of this Court shall docket the December 7, 1984, notice of appeal and advise the parties of the new appeal number.