904 F. 2d 708 - Spence v. Angton

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 responded stating that he was in protective custody on December 19, 1989, and that prison officials refused to give him paper.

It appears from the record that the final order was entered on December 11, 1989. The notice of appeal filed on January 22, 1990, was twelve 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.