Unpublished Dispositionjose Canales, Plaintiff-appellant, v. Fabian Lavigne, Defendant-appellee, 902 F.2d 32 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 902 F.2d 32 (6th Cir. 1990)

May 8, 1990

Before RALPH B. GUY, Jr., and RYAN, Circuit Judges, and ENGEL, Senior Circuit Judge.


This matter is before the court upon consideration of the appellant's response to this court's February 12, 1990, order directing him to show cause why his appeal should not be dismissed because of a late notice of appeal. Appellant responded stating that he gave his legal documents to a fellow prison inmate on January 24, 1990; that the inmate was transferred on February 5, 1990; and that he had difficulty preparing his appellate brief because law library access was restricted to six hours per week.

It appears from the record that the final order was entered December 1, 1989. The notice of appeal filed on January 4, 1990, was two 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. 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.