Unpublished Dispositiongregory L. Anderson, Plaintiff-appellant, v. James C. Hanzey; Charles E. Slater; Jae Jones; Fredwolverton; Michael Higgins; Dennis Mcclain; Ronsmall, Defendants-appellees, 897 F.2d 529 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 897 F.2d 529 (6th Cir. 1990) March 8, 1990

Before WELLFORD and DAVID R. NELSON, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.


ORDER

This matter is before the court upon consideration of the appellant's response to this court's November 17, 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. His response stated that he contracted hepatitis in January of 1988 and is still recovering from the illness. The appellees replied and appellant responded.

It appears from the record that the judgment was entered September 18, 1989. The notice of appeal filed on October 24, 1989, was six days late. Fed. R. App. P. 4(a) and 26(a). No motion for extension of time for filing the notice of appeal was filed in the district court within the thirty-day extension period provided by Fed. R. App. P. 4(a) (5).

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.