978 F. 2d 1258 - Cothran v. Pendley

This court entered an order on July 13, 1992, directing the appellant to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant responded stating that there was a delay in filing his notice of appeal because the copier at the prison was unusable for over two weeks and that documents submitted with the notice of appeal explained these difficulties.

On August 13, 1992, this court remanded the case to the district court directing that court to search its files for documents which accompanied the notice of appeal to determine if such documents can be construed as a motion for extension of time. The district court by order entered August 27 stated that the notice of appeal was originally filed in this court and forwarded to them with a letter from Mrs. Yvonne Henderson of this court. No other documents were received in the district court. This court has reviewed its file and located copies of letters forwarded by the appellant to this court which indicated that the prison law library was closed on May 25 and May 26 because of Memorial Day and for inventory purposes. No documents regarding the unavailability of the copier were received and no extension of time was sought.

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); 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 8(a), Rules of the Sixth Circuit.