Unpublished Dispositiondavid D. Haliburton, Plaintiff-appellant,carson L. Brown, Plaintiff, v. D. Houseworth; D. Proux; G. Borgert; G. Mcnamara; L.robinson; P. Rodgers; D. King; J. Marshall;michigan Department of Correctionsguards, Defendants-appellees, 848 F.2d 190 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 848 F.2d 190 (6th Cir. 1988) May 5, 1988

Before LIVELY, MERRITT and BOGGS, Circuit Judges.


ORDER

This matter is before the court upon consideration of the appellant's response to this court's February 4, 1988, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant has also filed a motion for counsel.

It appears from the record that the judgment was entered October 27, 1987. The notice of appeal filed on January 4, 1988, was 39 days late. Fed. R. App. P. 4(a) and 26(a).

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. The 60 day appeals period does not apply to this case against agencies and employees of the state of Michigan but is limited to cases in which the "United States or an officer or agency thereof is a party."

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