West v. Collins

863 F.2d 50

Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. David M. WEST, Plaintiff-Appellant, v. Martha Layne COLLINS, Governor; Steve Beshear, Lt. Governor; Drexel Davis, Secretary; David Armstrong, Attorney General; Charles Morehead, Warren County Court Clerk; the State Democratic Committee, Frankfort, Kentucky; John Deeb, Chairman, Warren County; Yvonne Guy, Warren County Court Deputy Clerk; Edward Coleman, State Chairman; Billy Ray Smith, State Representative; Jody Richards, State Representative; Frank Miller, State Senator; Donald Blandford, Speaker of the House; Joe Prather, President Pro-Tem of State Senate, Defendants-Appellees.

No. 88-5938.

United States Court of Appeals, Sixth Circuit.

Nov. 22, 1988.

1

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

ORDER 2

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 of lack of jurisdiction.

3

A review of the record indicates that appellant seeks to appeal a judgment entered by the district court on June 14, 1988. Pursuant to Fed.R.App.P. 4(a), a notice of appeal was required to have been filed within 30 days, i.e., July 14, 1988. Appellant filed his notice of appeal on August 19, 1988, 36 days late. Appellant states in his response that he suffers from stress related exhaustion and a communicable rash-like disease which prohibits him from timely filing a notice of appeal.

4

This court lacks jurisdiction in this appeal. 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.

5

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