904 F. 2d 707 - Harris v. United States

Before KEITH and ALAN E. NORRIS, Circuit Judges, and JOHN W. POTTER, District Judge*.

This matter is before the court upon consideration of the appellant's response to this court's February 7, 1990, order directing him to show cause why his appeal should not be dismissed because of a late notice of appeal. Appellant's response stated that the prison only forwards prisoner mail five days per week, and that he is hospitalized and confined to a wheelchair. He alleges that these reasons explain his late notice of appeal.

It appears from the record that the final order was entered on October 12, 1989. The last day for serving a motion to reconsider was October 26, 1989. On October 31, 1989, appellant filed a traverse which the district court treated as a motion for reconsideration. The order denying reconsideration was entered November 29, 1989. The notice of appeal filed on January 12, 1990, was thirty-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.