Eric Smith v. Hamilton County, Tennessee, No. 13-5186 (6th Cir. 2013)

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No. 13-5186 File Name: 13a0392n.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ERIC DEWAYNE SMITH, Plaintiff-Appellant, v. HAMILTON COUNTY, TENNESSEE; DEBBIE MORRIS, With I/A; JIM HAMMOND; RICHARD SHOCKLEY; CAPT SWOPE; ROBERT JOHNSON, Defendants, and OFFICER OWENS; OFFICER DANIEL, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) FILED Apr 18, 2013 DEBORAH S. HUNT, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE Before: MARTIN, GILMAN, and KETHLEDGE, Circuit Judges. PER CURIAM. This Court entered an order on March 5, 2013, remanding this appeal to the district court for the limited purpose of determining whether Eric Dewayne Smith s late notice of appeal should be treated as a motion for an extension of time to file an appeal, pursuant to Federal Rule of Appellate Procedure 4(a)(5), and, if appropriate, for a ruling on the motion. The district court issued an order on March 21, 2013, denying Smith permission to file a delayed appeal. It determined that Smith had failed to show excusable neglect or good cause. The documents before the Court indicate that the district court entered its judgment on January 2, 2013. The notice of appeal filed on February 7, 2013 was late. See Fed. R. App. P. 4(a) and 26(a). Compliance with Federal Rule of Appellate Procedure 4(a) is a mandatory prerequisite No. 13-5186 -2that this Court may neither waive nor extend. Bowles v. Russell, 551 U.S. 205, 214 (2007); Ultimate Appliance CC v. Kirby Co., 601 F.3d 414, 415 16 (6th Cir. 2010). Federal Rule of Appellate Procedure 26(b) specifically provides that this Court may not enlarge the time for filing a notice of appeal except as authorized by Rule 4. See Fed. R. App. P. 26(b). Although the exceptions authorized in Rule 4 include excusable neglect and good cause, see Federal Rule of Appellate Procedure 4(a)(5)(A), Smith has failed to demonstrate either, as the district court concluded. Accordingly, it is ordered that the appeal is dismissed.

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