Eddie Dee v. Summit County Prosecutor John Reese, Judge State of Ohio

863 F.2d 47, 1988 U.S. App. LEXIS 16993, 1988 WL 123601

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 17, 1988
• Docket: 88-3797
• Status: Unpublished

Opinion

863 F.2d 47

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Eddie DEE, Plaintiff-Appellant,
v.
SUMMIT COUNTY PROSECUTOR, et al.; John Reese, Judge; State
of Ohio, Defendants-Appellees.

No. 88-3797.

United States Court of Appeals, Sixth Circuit.

Nov. 17, 1988.

Before DAVID A. NELSON and BOGGS, Circuit Judges, and RICHARD A. ENSLEN, District Judge.*

ORDER

This matter is before the court upon consideration of the appellant's response to this court's September 19, 1988, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction.

A review of the record indicates that appellant seeks to appeal a judgment entered by the district court on June 21, 1988. Pursuant to Fed.R.App.P. 4(a), a notice of appeal was required to have been filed within 30 days, i.e., by July 21, 1988. Appellant filed his notice of appeal on August 26, 1988, thirty-six days late. Appellant states in his response that his notice of appeal was delayed because he received notice of the district court's judgment late and was denied an extension of time in which to file a notice of appeal.

This court lacks jurisdiction in this appeal. Filings reaching the clerk's office after a deadline are untimely. Torras Herreria v. M/V Timur Star, 803 F.2d 215, 216 (6th Cir.1986); Pryor v. Marshall, 711 F.2d 63 (6th Cir.1983).

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. 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 motion to proceed in forma pauperis is hereby denied and the appeal is hereby dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.

* The Honorable Richard A. Enslen, U.S. District Judge for the Western District of Michigan, sitting by designation