890 F2d 417 Sims v. Dirisio
890 F.2d 417
Coy Napolean SIMS, Jr., Plaintiff-Appellant,
Joseph Frank DIRISIO; Terry Stallone; Steve Bevells; John
Doe I and II; Hamilton County, Tennessee,
United States Court of Appeals, Sixth Circuit.
Dec. 1, 1989.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 BOYCE F. MARTIN, Jr. and ALAN E. NORRIS, Circuit Judges, and CONTIE, Senior Circuit Judge.
This matter is before the court upon consideration of the appellant's response to this court's September 12, 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. He states that he was transferred to a different penal facility but he did not receive a copy of the district court's decision until he notified the district court in June of his transfer.
It appears from the record that the final order was entered April 6, 1989. The notice of appeal filed on June 19, 1989, was forty-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. Lack of notice of entry of the final decision does not affect the appeal period. Fed.R.Civ.P. 77(d).
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.