Unpublished Dispositionwillie Beaver, Plaintiff-appellant, v. Walczak, Sgt., Defendant-appellee, 887 F.2d 1086 (6th Cir. 1989)

Before NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges, and WILLIAM O. BERTELSMAN, District Judge.^* 

ORDER

This matter is before the court upon consideration of the appellant's response to this court's August 1, 1989, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant states that the negligence of the Michigan Department of Corrections in not expeditiously forwarding his mail from one institution to another resulted in a three month delay in receiving the district court's decision.

It appears from the record that the judgment was entered February 22, 1989. The notice of appeal filed on May 30, 1989, was sixty-seven days late. Fed. R. App. P. 4(a) and 26(a). Lack of notice of entry of judgment by the clerk does not affect the time to appeal, relieve or authorize the court to relieve a party for failure to appeal within the time allowed. Fed. R. Civ. P. 77(d).

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.

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.