Wright v. McWherter

875 F.2d 869, 1989 U.S. App. LEXIS 6993, 1989 WL 51382

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 18, 1989
• Docket: 88-6139
• Status: Unpublished

Opinion

875 F.2d 869

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Ronald WRIGHT, Plaintiff-Appellant,
v.
Ned MCWHERTER, Governor, State of Tennessee, Steven Norris,
Commissioner, Tennessee Department of Corrections,
C.G. Neese, U.S. District Judge,
Defendants-Appellees.

No. 88-6139.

United States Court of Appeals, Sixth Circuit.

May 18, 1989.

Before MERRITT and NATHANIEL R. JONES, Circuit Judges, and DOUGLAS W. HILLMAN, Chief District Judge.*

This court entered an order October 19, 1988, directing the appellant to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. A copy of the order sent to appellant at the Knox County Jail was returned October 31, 1988. The order was mailed to the appellant at Brushy Mountain State Prison on November 1, 1988, and returned because appellant was temporarily at another location for a court date. It was resent again on November 17, 1988, and was apparently received by the appellant because the mail was not returned. Appellant has failed to respond to this court's order or to notify the court of his changes of address.

It appears from the record that the final order was entered May 5, 1988. The notice of appeal filed on September 14, 1988 was 100 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. 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 hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.

* The Honorable Douglas W. Hillman, Chief U.S. District Judge for the Western District of Michigan, sitting by designation