Unpublished Dispositionsonya K. Clark, Plaintiff-appellant, v. Dorothy M. Arn; Fco Patricia A. Blue; Lt. or Capt. Johndoe; Mco John Fragman; Fco Cindy Evans,defendants-appellees, 841 F.2d 1125 (6th Cir. 1988)

ORDER

This matter is before the court upon receipt of a notice of appeal filed nunc pro tunc upon remand of the appeal to the district court. Upon consideration of appellant's response to this court's order of September 1, 1987, this court remanded the case to the district court on December 22, 1987, for it to determine if it received a letter from appellant alleging her intent to appeal. On January 8, 1988, the district court entered on its docket sheet a notice of appeal filed nunc pro tunc as of July 21, 1987.

It appears from the record that the judgment of the district court was entered on July 16, 1987. Appellant's notice of appeal was required to be filed on or before August 17, 1987. Fed. R. App. P. 4(a) and 26(a). The notice of appeal filed nunc pro tunc on July 21, 1987, was within that period but the notice of appeal filed August 18, 1987, and docketed as appeal number 87-3803 was one day late.

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R. App. P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. McMillan v. Barksdale, 823 F.2d 981, 982 (6th Cir. 1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir. 1985); Denley v. Shearson/American Express, Inc., 733 F.2d 39, 41 (6th Cir. 1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (6th Cir. 1983). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

It is ORDERED that appeal number 87-3803 be and hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.

The clerk of this court is directed to docket the July 21, 1987, notice of appeal and advise the parties of the new appellate case number.