Unpublished Dispositionrobert Earl Ellis, Plaintiff-appellant, v. Debbie West, Nurse; Steve Asch, Ma; Norris W. Mcmackin,supt.; Nancy Mcmurey; Ruth Skirk, Lpn; William S.lee, Defendants-appellees, 826 F.2d 1063 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 826 F.2d 1063 (6th Cir. 1987)

Aug. 12, 1987



This matter is before the court upon consideration of the appellees' motion to remand the case. Appellant has failed to respond.

A review of the record indicates that on April 1, 1986, Ellis filed a civil rights action in the district court seeking $1,000,000 in punitive and compensatory damages. A separate motion for a temporary restraining order was denied by the district court. He also filed a petition for a writ of mandamus seeking release from solitary confinement. The magistrate filed a report and recommendation recommending that the petition for writ of mandamus be denied. After considering the objections, the district court on December 11, 1986, adopted the report and recommendation and dismissed the case rather than denying the mandamus petition. A separate judgment was entered. Thereafter, both parties proceeded to file documents regarding Ellis' motion to compel. On March 30, 1987, the district court judge denied the motion to compel as moot because the case was dismissed on December 11, 1986. Ellis appealed on April 24, 1987.

The April 24, 1987, notice of appeal from the district court's December 11, 1986, decision was filed 74 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 to remand be denied and the appeal be dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.