Charley Gillmore Johnson, Plaintiff-appellant, v. Stewart Evans, Nancy Edwards, Walter E. Hallock, Jr.,defendants-appellees, 891 F.2d 291 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 891 F.2d 291 (6th Cir. 1989)

Dec. 12, 1989

Before BOYCE F. MARTIN, Jr., NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges.


This matter is before the court upon consideration of the appellant's response to this court's October 25, 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's response states that he is illiterate and must depend on fellow prisoners to assist him in the preparation of legal documents. Appellee Evans has filed a motion to dismiss.

It appears from the record that the judgment was entered March 27, 1989. A Fed. R. Civ. P. 60(b) motion was served on April 18, 1989, and filed on April 25, 1989. This motion was not served within ten days of entry of the judgment nor was it one of the time-tolling motions enumerated in Fed. R. App. P. 4(a) (4). Therefore, the motion failed to toll the appeal period. The Rule 60(b) motion was denied on June 5, 1989. The notice of appeal filed on September 25, 1989, was five months 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. 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 motion to dismiss be granted and the appeal be, and it hereby is, dismissed. Rule 8, Rules of the Sixth Circuit.