Unpublished Disposition Notice: Sixth Circuit Rule 24(C) States that Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Sixth Circuit. Willie Gene Harrington, Plaintiff-Appellant, v. James J. Tomaszewski, Area Manager, Sandra Smokoska, Supervisor, Defendants-Appellees., 930 F.2d 918 (6th Cir. 1991)

Text

---

Before KENNEDY, NATHANIEL R. JONES and DAVID A. NELSON, Circuit Judges.

ORDER

This matter is before the court upon consideration of the appellant's motion for in forma pauperis status and response to this court's January 11, 1991, 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 he never received an order granting the appellee's motion for summary judgment.

It appears from the record that the judgment was entered on July 31, 1990, and that the notice of appeal dated October 8, 1990, was filed in the district court on October 10, 1990. This filing occurred forty-one 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); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir.1985); Peake v. First Nat'l Bank & Trust Co. of Marquette, 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. The motion to proceed in forma pauperis is denied.

---