904 F. 2d 707 - Karr v. Pitts

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 5, 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 generally that his appeal should not be dismissed as he was transferred from the Scott Regional Correctional Facility to the Marquette Branch Prison without prior notice, and the Michigan correctional system does not properly manage inmate mail. He did not specify a date on which he gave prison authorities a notice of appeal.

It appears from the record that the judgment was entered on December 8, 1989, and that the notice of appeal dated December 26, 1989, was filed in the district court on January 12, 1990. This filing occurred four days late. Fed.R.App.P. 4(a) and 26(a). No motion for extension of time for filing the notice of appeal was filed in the district court within the thirty day extension period provided by Fed.R.App.P. 4(a)(5).

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.