Unpublished Dispositionjesse Eugene Harris, Plaintiff-appellant, v. Sgt. Dennis Birdwell and Joe Casey, Defendnats-appellees, 826 F.2d 1063 (6th Cir. 1987)Annotate this Case
Aug. 13, 1987
Before KENNEDY, MILBURN and NORRIS, Circuit Judges.
This matter is before the court upon consideration of appellant's motion for appointment of counsel and response to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant asserts that his notice of appeal was filed late because he never received the magistrate's report and recommendation and the decision of the district court.
The record indicates that the decision of the district court was entered January 27, 1987. Any motion seeking reconsideration was due to be filed on or before February 10, 1987. Rules 6(a) and 59(e), Federal Rules of Civil Procedure. Appellant's motion for rehearing was prepared on March 17, 1987, and filed in the district court on March 18, 1987. Such motion did not toll the appeals period because it was not filed within the period prescribed by Rule 59, Federal Rules of Civil Procedure. Rule 4(a) (4), Federal Rules of Appellate Procedure. The ruling of the district court denying the motion for rehearing was entered on April 6, 1987. The April 21, 1987, notice of appeal taken from the January 27, 1987, decision was filed fifty-four 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. Failure to receive a copy of the district court's judgment does not relieve a party from failure to appeal within the required period. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983).
It is ORDERED that the motion for counsel be denied and the appeal be dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.