Bernard E. Smith, William Houchin, David Jackson, Steve Clabough v. Gary Livesay, Warden, Gary Medlin, Crystal Stull and Charles Brymer

803 F.2d 721, 1986 U.S. App. LEXIS 31073, 1986 WL 17819

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 22, 1986
• Docket: 86-5654
• Status: Unpublished

Opinion

803 F.2d 721

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
BERNARD E. SMITH, WILLIAM HOUCHIN, DAVID JACKSON, STEVE
CLABOUGH, Plaintiffs-Appellants
v.
GARY LIVESAY, WARDEN, GARY MEDLIN, CRYSTAL STULL AND CHARLES
BRYMER, Defendants-Appellees.

No. 86-5654.

United States Court of Appeals, Sixth Circuit.

Sept. 22, 1986.

BEFORE: MARTIN, MILBURN and BOGGS, Circuit Judges

ORDER

This matter is before the Court upon consideration of the appellants' response to the Court's June 26, 1986, order. Appellants have also filed a motion for appointment of counsel.

It appears from the record that the final order was entered April 9, 1986. The notice of appeal filed on May 12, 1986, was three days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure.

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

Appellants' response to this Court's June 26, 1986, order asserts that an extra three days for mailing should be added to the appeals period for mailing. Neither Rule 6(e), Federal Rules of Civil Procedure, nor Rule 26(c), Federal Rules of Appellate Procedure, extends the appeals period. Sofarelli Associates, Inc. v. United States, 716 F.2d 1395 (Fed. Cir. 1983); Welsh v. Elevating Boats, Inc., 698 F.2d 230 (5th Cir. 1983); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kurtenbach, 525 F.2d 1179 (8th Cir. 1975); Lashley v. Ford Motor Company, 518 F.2d 749 (5th Cir. 1975).

Accordingly, it is ORDERED that this appeal be and it hereby is dismissed for lack of jurisdiction. Rule 9(d)(1), Rules of the Sixth Circuit.

It is further ORDERED that the motion for counsel be and hereby is denied.