George Tolbert v. Roger T. Overberg T.L. Morris G.D. Alexander Captain Blair Sandy Zimmerman John Doe , 831 F.2d 297 ( 1987 )

831 F.2d 297

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
George TOLBERT, Plaintiff-Appellant,
v.
Roger T. OVERBERG; T.L. Morris; G.D. Alexander; Captain
Blair; Sandy Zimmerman; John Doe, Defendants-Appellees.

No. 87-3584.

United States Court of Appeals, Sixth Circuit.

Oct. 13, 1987.

Before LIVELY, Chief Judge, MILBURN, Circuit Judge, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

ORDER

1

This court entered an order on July 6, 1987, directing the appellant to show cause why his appeal should not be dismissed for lack of jurisdiction. The judgment of the district court was entered on May 6, 1987. A document entitled "Certificate Stating that Plaintiff will provide Record on Appeal" was filed on June 8, 1987, by the district court and treated as a notice of appeal. That notice of appeal docketed as appeal number 87-3584 was three days late. Fed.R.App.P. 4(a) and 26(a).

2

The appellant responded to this court's July 6, 1987, order stating that he filed a notice of appeal in the district court on June 1, 1987. A copy of a file stamped notice of appeal was attached to the response. Such notice of appeal was not recorded on the district court docket sheet.

3

On September 3, 1987, this court remanded the case to the district court to ascertain whether the June 1, 1987, notice of appeal was filed in the district court and for correction of its records, if appropriate, to include the June 1, 1987, notice of appeal. The district court has since corrected its records to reflect the filing of the June 1, 1987, notice of appeal and that appeal has been docketed as appeal number 87-3854.

4

The document filed as a notice of appeal on June 8, 1987, from the May 6, 1987, judgment was three 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. Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir.1983). Fed.R.App.P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

5

It is ORDERED that appeal number 87-3584 be dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit. The dismissal of appeal number 87-3584 does not affect the pendency of appeal number 87-3854.