Allen Lee Fleetwood, Plaintiff-appellant, v. Jerry Sherman, Hearing Officer; Jerry Lablanc, Guard; Mr.loomis, Property Sgt.; Frank Sulskis, Guard; Tom Osier,deputy Warden; Ralph Chapman, Guard; Allen Wright, Guard;mr. Robinson, Guard, Defendants-appellees, 891 F.2d 290 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 891 F.2d 290 (6th Cir. 1989) Dec. 4, 1989

Before MILBURN and RALPH B. GUY, Jr., Circuit Judges, and LIVELY, Senior Circuit Judge.


ORDER

This matter is before the court upon consideration of the appellant's response to this court's August 8, 1989, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant responded that he had surgery which resulted in his being transferred from one institution to another from May 26, 1989 until he was returned to his designated place of incarceration on June 16, 1989. He states that these transfers resulted in him not receiving the district court's decision until July 14, 1989.

It appears from the record that the judgment was entered June 14, 1989. The notice of appeal filed on July 21, 1989, and dated July 18, 1989, was seven days late. Fed. R. App. P. 4(a) and 26(a). Lack of notice of entry of the decision does not relieve a party for failure to appeal within the appeal period prescribed by Fed. R. App. P. 4(a) (1). Fed. R. Civ. P. 77(d).

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. Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir. 1989) (per curiam); 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 it hereby is, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.