Unpublished Dispositionlevert K. Griffin, Plaintiff-appellant, v. Thomas Stutler; David Troutman, Sheriff's Deputy,defendants-appellees, 856 F.2d 194 (6th Cir. 1988)

ORDER

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the file indicates that the judgment of the district court dismissing appellant's 42 U.S.C. § 1983 civil rights complaint was entered September 30, 1986. This court affirmed the district court decision on August 27, 1987 (appeal number 87-3121). A second appeal (appeal number 87-3822) was dismissed on October 5, 1987, for lack of jurisdiction. On December 2, 1987, the district court denied a motion to reconsider which was filed the same date. Appellant filed a notice of appeal on January 6, 1988 (appeal number 88-3021) which was dismissed on June 21, 1988, by this court for lack of jurisdiction because of a late notice of appeal. The mandate in that appeal issued July 19, 1988.

While appellant's appeal from the January 6 notice of appeal was still pending, he tendered to the district court a copy of that notice of appeal indicating that he was amending it on May 6, 1988, and that it was being resubmitted on May 16, 1988. That notice of appeal was filed in the district court on June 1, 1988, and was docketed as appeal number 88-3508.

This court lacks jurisdiction in appeal number 88-3508. This court previously dismissed appeal number 88-3021 as late and appellant's resubmission of essentially the same notice of appeal to the district court five months later is also late. Fed. R. App. P. 4(a) (1) requires that the notice of appeal be filed in the district court within 30 days of entry of the order being appealed. The June 1, 1988, notice of appeal from the December 2, 1987, order denying reconsideration was five months late. Fed. R. App. P. 4(a) and 26(a).

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 88-3508 be and hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.