Unpublished Dispositionjimmy James Swann, Plaintiff-appellant, v. Howard Hilton, Jailer, Eddie Seal, Guard, Mike Thorn, Guard,defendants-appellees, 881 F.2d 1077 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 881 F.2d 1077 (6th Cir. 1989) Aug. 10, 1989

Before NATHANIEL JONES and ALAN E. NORRIS, Circuit Judges, and RICHARD B. McQUADE, Jr., District Judge* .


This matter is before the court upon consideration of the appellant's response to this court's order filed July 3, 1989, directing him to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant's response stated that he is not knowledgeable in the law, he was misled by defense counsel and legal aids, and that he is functionally illiterate. The appellees on July 17, 1989, filed a motion to dismiss on the same basis as this court's July 3, 1989, show cause order.

It appears from the record that the final judgment of the district court was entered February 10, 1989. A Fed. R. Civ. P. motion for reconsideration was served on February 23, 1989, and filed March 2, 1989. This motion was served within ten days of entry of the judgment as computed pursuant to Fed. R. Civ. P. 6(a) and tolled the appeals period as provided by Fed. R. App. P. 4(a) (4). Reconsideration was denied by order entered March 3, 1989. The notice of appeal filed May 19, 1989 was forty-six 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, 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 Honorable Richard B. McQuade, Jr., U.S. District Judge for the Northern District of Ohio, sitting by designation