Unpublished Dispositiongregory A. Smith, Plaintiff-appellant, v. Stephen Norris, T.r. Young, Gary Wix, Davis Russell, Michaeldutton, Jack Morgan, David Hindman, Jerry Jeter, Harvilmccrary, Brenda Morrison, Rosa Johnson, Brian Coffey, Davidbrown, Ernest Tidwell, Richard Sweeney, Louis Kirby, Williammcintyre, Gary Tisdale, Benjamin Miller, Don Wilkes, Hughcrawford, James Fortner, Hardin Green, Ed Brown, and Bobbycampbell, Defendants-appellees, 826 F.2d 1065 (6th Cir. 1987)Annotate this Case
Before LIVELY, Chief Judge, KEITH, Circuit Judge, and DOWD, District Judge* .
Appellant has failed to respond to this court's May 19, 1987, order directing him to show cause why appeal number 87-5501 should not be dismissed for lack of jurisdiction.
It appears from the record that the final order was entered March 23, 1987. A notice of appeal was filed March 31, 1987, and docketed as appeal number 87-5429. Pursuant to Rule 4(a) (3), Federal Rules of Appellate Procedure, a party may file a notice of appeal within 14 days after the date on which a first timely notice of appeal was filed, or within the time otherwise prescribed by Rule 4(a), whichever period last expires. The notice of appeal filed April 23, 1987, and docketed as appeal number 87-5501 was one day 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.
Accordingly, it is ORDERED that appeal number 87-5501 be and hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit. The dismissal of appeal number 87-5501 does not affect the pendency of appeal number 87-5429.
The Honorable David D. Dowd, Jr., U.S. District Judge for the Northern District of Ohio, sitting by designation