Unpublished Dispositionharold E. Hall, Plaintiff-appellant, v. Michael Stanczyk, Donald Harhold, Fred Stauton, Defendants-appellees, 852 F.2d 1287 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 852 F.2d 1287 (6th Cir. 1988) July 27, 1988

Before BOYCE F. MARTIN, Jr. and WELLFORD, Circuit Judges and JAMES H. JARVIS, District Judge.*

ORDER

This court entered an order on April 25, 1988, 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 final order was entered September 1, 1987. The notice of appeal filed on March 23, 1988, was 174 days late. Fed. R. App. P. 4(a) and 26(a).

The record also indicates that by letter dated October 18, 1987, and filed October 21, 1987, appellant wrote to the clerk of the district court requesting a response to his October 5 letter seeking copies of documents so he could file his appeal. The October 5 letter is not part of the district court record on appeal.

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, 982 (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, 41 (6th Cir. 1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (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.

The district court is directed to review its records to determine if appellant's October 5 or October 18 letters can be construed as a notice of appeal and/or motion for extension of time. If the court construes either document as a notice of appeal, the district court's records should be corrected pursuant to Fed. R. App. P. 10(e) and a copy should be forwarded to this court for docketing of an appeal as provided by Fed. R. App. P. 3(d).