Unpublished Dispositionalbert W. Thomas, Sr., Plaintiff-appellant, v. Perry M. Johnson, Robert Brown, Jr., William E. Grant,charles E. Anderson, Duane Holes, Arzell Johnson,defendants-appellees, 829 F.2d 39 (6th Cir. 1987)

This matter is before the court upon consideration of the appellant's response to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant's response states that he did not receive a copy of the April 13, 1987, decision from his attorney until May 11, 1987. He also states that on May 17, 1987, he wrote a letter to this court advising of his difficulties in filing an appeal and asking this court's advice.

It appears from the file that the judgment dated April 13, 1987, and filed April 16, 1987, was entered April 21, 1987. Any notice of appeal from that judgment was due to be filed on or before May 21, 1987. Fed. R. App. P. 4(a) and 26(a). The notice of appeal erroneously received in this court on May 26, 1987, was forwarded by this court for filing pursuant to Fed. R. App. P. 4(a) (1) to be deemed filed in the district court on May 26, 1987. That notice of appeal docketed as appeal 87-1629 was five days late. Fed. R. App. P. 4(a) and 26(a).

A review of our case file has located appellant's May 17, 1987, letter which evinced his intent to appeal and which alleged excusable neglect or good cause for the late filing of a notice of appeal. That document was received in this court on May 22, 1987, outside the appeals period but within the 30 day extension period. Fed. R. App. P. 4(a) and 26(a). It complied with the requirements of Fed. R. App. P. 3(c) and should have been transmitted to the district court as a notice of appeal as provided by Fed. R. App. 4(a) (1). It also alleges excusable neglect for the failure to timely appeal and may be treated as a motion for extension of time. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983).

It is ORDERED that appeal number 87-1629 be dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit. The clerk of this court is directed to forward the May 17, 1987, letter to the district court for filing as a notice of appeal and request for extension of time as provided by Fed. R. App. P. 4(a) (1). Upon filing, the district court should transmit the notice of appeal to us as provided by Fed. R. App. P. 3(d) and consider the motion for extension of time. The appellant will be advised at a future date of the appeal number assigned to the May 22, 1987, notice of appeal.