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770 F2d 166 John David Mosley v. Lt. Bobby Loafman, Et. al.

770 F.2d 166

John David Mosley, Plaintiff-Appellant,
v.
Lt. Bobby Loafman, et. al., Defendants-Appellees.

No. 85-5344

United States Court of Appeals, Sixth Circuit.

July 19, 1985.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

BEFORE: JONES, CONTIE and WELLFORD, Circuit Judges.

1

This matter is before the Court upon consideration of appellant's motion for appointment of counsel and the appellees' motion to dismiss to which the appellant has failed to respond.

2

It appears from the file that the final order was entered January 10, 1985. The notice of appeal filed on April 17, 1985 was 65 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure.

3

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First Nat. Bank and Trust Co. of Marquette, 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

4

It does not appear from the district court docket sheet that a separate judgment as required by Rule 58, Federal Rules of Civil Procedure, has been entered by the district court. After the district court enters a separate judgment as required by Rule 58, appellant may file a new notice of appeal within the time period provided by Rule 4(a), Federal Rules of Appellate Procedure.

5

It is ORDERED that the motion to dismiss be granted and the appeal be and it hereby is dismissed without prejudice to appellant filing a new notice of appeal after the district court enters a separate judgment as required by Rule 58, Federal Rules of Civil Procedure. Rule 8, Rules of the Sixth Circuit.

6

It is further ORDERED that the motion for appointment of counsel be and it hereby is denied.