Unpublished Dispositionrobert E. Wellington, Plaintiff-appellant, v. John W. Allen; John Doe; Roth Strong; Diane Bright;james Goldsmith, Jr.; Philip Messer; Johnwendland; Robert Lemon; Allen D.werstiuk, Defendants-appellees, 840 F.2d 18 (6th Cir. 1988)

ORDER

This court entered an order on November 24, 1987, directing the appellant to show cause within 21 days why his appeal should not be dismissed for lack of jurisdiction. Appellant has failed to respond.

It appears from the record that the judgment was entered September 23, 1987. The notice of appeal filed on October 26, 1987, was 3 days late. Fed. R. App. P. 4(a) and 26(a). The notice of appeal filed on October 26, 1987, in the United States District Court in Akron also contains an October 21, 1987, received stamp of the United States Attorney's Office in Cleveland. Fed. R. Civ. P. 5(e) provides that filings be made with the clerk of the court. The filing of a notice of appeal is accomplished only when the notice of appeal is actually received by the clerk or when placed in the clerk's post office box. Torras Herreria v. M/V Timur Star, 803 F.2d 215 (6th Cir. 1986).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R. App. P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. McMillan v. Barksdale, 823 F.2d 981 (6th Cir. 1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir. 1985); Denley v. Shearson/American Express, Inc., 733 F.2d 39 (6th Cir. 1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

Accordingly, it is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.