Unpublished Dispositionlarry Anderson, Plaintiff-appellant, v. Arthur C. Taylor; Officer Miller, Defendants-appellees, 821 F.2d 649 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 821 F.2d 649 (6th Cir. 1987) June 25, 1987

Before KENNEDY and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.

This matter is before the court upon consideration of appellant's motion for counsel and responses to this court's November 7, 1986, order directing the appellant to show cause why his appeal should not be dismissed for lack of jurisdiction due to a late filed notice of appeal.

A review of the record indicates that the judgment dismissing the civil rights action was entered August 22, 1986, and the notice of appeal was filed October 23, 1986. On February 11, 1987, the district court granted appellant's November 14, 1986, motion for extension of time. Rule 4(a) (5), Federal Rules of Appellate Procedure, limits the district court's authority to grant extensions of time to those motions filed within 30 days after the expiration of the time for filing the notice of appeal. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983). The district court lacked authority for granting the motion for extension of time because it was filed 53 days after the appeals period expired. The October 23, 1986, notice of appeal from the August 22, 1986, decision was filed 31 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. Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

It is ORDERED that the motion for appointment of counsel be denied and the appeal be dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.