908 F2d 974 Williams v. Michigan Department of Corrections

908 F.2d 974

Isiah Vaughn WILLIAMS, Plaintiff-Appellant,
v.
MICHIGAN DEPARTMENT OF CORRECTIONS, et al., Defendants-Appellees.

No. 90-1607.

United States Court of Appeals, Sixth Circuit.

July 27, 1990.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 KEITH and RALPH B. GUY, Jr., Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.

ORDER

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1

This matter is before the court upon consideration of the appellant's response to this court's June 8, 1990, 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 prison officials interfered with his ability to use the law library for research.

2

It appears from the record that the judgment was entered March 30, 1990, and that the notice of appeal dated May 1, 1990, was filed in the United States Court of Appeals for the Sixth Circuit on May 11, 1990. Pursuant to Fed.R.App.P. 4(a)(1), this court forwarded the document back to the district court and advised it to file the notice of appeal effective May 11, 1990. The notice of appeal is deemed filed in the district court on May 11, 1990. Such notice of appeal was 11 days late. Fed.R.App.P. 4(a) and 26(a).

3

It further appears from the record that appellant did not apply to the district court for an extension of time within which to file the notice of appeal late, due to excusable neglect, and it appears that no such extension of time has been granted by the district court.

4

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.

5

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.