Daries Sherills v. State of Ohio

774 F.2d 1164

Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

Nos. 84-3863, 84-3864, 84-3865, 84-3866

United States Court of Appeals, Sixth Circuit.

9/26/85

N.D.Ohio

APPEAL DENIED

ORDER

BEFORE: KEITH, KENNEDY and MILBURN, Circuit Judges.

1

These cases are before the Court upon consideration of the motions for appointment of counsel, leave to proceed in forma pauperis and to dismiss for want of prosecution.

2

A review of the record indicates that the district court decisions in civil actions 83-147, 83-148 and 83-584 were entered June 29, 1983. On July 11, 1983, Sherills filed a motion for new trial. The motion did not toll the appeals period as provided by Rule 4(a)(4), Federal Rules of Appellate Procedure, since it was not timely served upon opposing counsel as required by Rules 5 and 59, Federal Rules of Civil Procedure. The notice of appeal filed July 11, 1983, and docketed as appeal number 84-3863 was filed within the appeals period provided by Rule 4(a), Federal Rules of Appellate Procedure. The three notices of appeal filed June 14, 1984, and docketed as appeals 84-3864, 84-3865 and 84-3866 were filed 311 days late. Rule 4(a) and 26(a), Federal Rules of Appellate Procedure. An order denying the motion for new trial was entered October 3, 1984.

3

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. Bank and Trust Co. of Marquette, 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.

4

The appellees have filed a motion to dismiss the appeals for want of prosecution. A review of the Court's file indicates that on December 20, 1984, appellant filed an informal brief as requested by this Court.

5

It is ORDERED that the motion of the appellees to dismiss the appeals be and hereby is denied.

6

It is further ORDERED that appeals 84-3864, 84-3865 and 84-3866 be and hereby are dismissed for lack of jurisdiction and the motions for appointment of counsel and for leave to proceed in forma pauperis in those three appeals are denied. Rule 9(d)(1), Rules of the Sixth Circuit. The motions for appointment of counsel and for leave to proceed in forma pauperis as they apply to appeal number 84-3863 be and hereby are held in abeyance pending further order of this Court.