Unpublished Dispositionarchmael Ray Sales, Plaintiff-appellant, v. Wayne Walters, Cashier; R.c. Marshall, Supt., Defendants-appellees, 758 F.2d 653 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 758 F.2d 653 (6th Cir. 1985) 2/21/85

ORDER

BEFORE: ENGEL, JONES, and KRUPANSKY, Circuit Judges.


This matter is before the Court upon consideration of the defendants' motion to dismiss, the plaintiff's response thereto, and the plaintiff's response to this Court's show cause order.

It appears from the record that the judgment was entered October 11, 1984. Any notice of appeal was due to be filed on or before November 13, 1984. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure.

Plaintiff filed a notice of appeal on November 26, 1984, which was docketed in this Court as case no. 84-3994. The notice of appeal was filed 13 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure. The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Browder v. Director, Department of Corrections, 434 U.S. 257 (1978); EEOC v. K-Mart, Corp., 694 F.2d 1055 (6th Cir. 1982). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

A review of the record indicates that on December 17, 1984, the district court ordered that the October 26, 1984, motion of the plaintiff to certify the records be redocketed on their records as a notice of appeal. The October 26, 1984, notice of appeal was filed within the time period prescribed by Rule 4(a), Federal Rules of Appellate Procedure, but has not yet been docketed in this Court.

It is ORDERED that the motion to dismiss case no. 84-3994 be granted and the appeal be and hereby is dismissed. Rule 8, Rules of the Sixth Circuit. The Clerk of this Court is directed to docket the appeal taken by the October 26, 1984, notice of appeal.