Unpublished Dispositionjames Parker, Plaintiff-appellant, v. Michael Baum, M.d.; Kelley Russell; Margrette Page,defendants-appellees, 883 F.2d 75 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 883 F.2d 75 (6th Cir. 1989) Aug. 16, 1989

Before BOYCE F. MARTIN, Jr., WELLFORD and MILBURN, Circuit Judges.


ORDER

This matter is before the court upon consideration of the appellant's response to this court's order of 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. Such order directed that the "response may include, but is not limited to, proof of the date on which the notice of appeal was given to prison authorities for mailing to the district court." Appellant responded stating that the three-day filing delay was because the prison library was closed, he was preparing for final exams and there was a lockdown. He did not state the date he gave the notice of appeal to prison authorities. The appellees have replied to appellant's response.

It appears from the documents before the court that the judgment was entered May 17, 1989. The notice of appeal filed on June 19, 1989, was three 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 it is, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.