Unpublished Dispositiondaries Sherrills, Plaintiff-appellant, v. Frank H. Gray, Supt.; Smith, Nursing Director; Rubycummings, Nurse; Greene, Dr., Defendants-appellees, 867 F.2d 611 (6th Cir. 1989)Annotate this Case
Feb. 6, 1989
Before KENNEDY and DAVID A. NELSON, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.
This matter is before the court upon consideration of appellant's response to this court's order of December 2, 1988, which directed him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellees have filed a motion to dismiss the appeal for the same reason, to which appellant has filed a response.
Review of the record indicates that a final judgment was entered on April 3, 1985. Appellant filed the notice of appeal on November 9, 1988, at which time he also moved for an extension of time to take an appeal from the district court. As the district court denied that request on November 18, 1988, the appeal was filed more than three years late. Fed. R. App. P. Rule 4(a) and 26(a).
An appellant's failure to file a timely notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R. App. P. 4(a) is a mandatory, jurisdictional prerequisite which this court can neither waive or extend. 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 late notice of appeal. Moreover, the district court was without authority to grant appellant's request for an extension of time to file a notice of appeal as his motion for that relief was filed outside the time limits specified in Fed. R. App. P. 4(a) (5).
Accordingly, it is ORDERED that the motion to dismiss be granted and the appeal be and hereby is dismissed for lack of jurisdiction. Rule 8(a) (1), Rules of the Sixth Circuit.