Eric Smith v. Hamilton County, Tennessee ( 2013 )


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  •                                            No. 13-5186
    File Name: 13a0392n.06                             FILED
    Apr 18, 2013
    UNITED STATES COURT OF APPEALS                  DEBORAH S. HUNT, Clerk
    FOR THE SIXTH CIRCUIT
    ERIC DEWAYNE SMITH,                                 )
    )
    Plaintiff-Appellant,                         )
    )
    v.                                                  )       ON APPEAL FROM THE
    )       UNITED STATES DISTRICT
    HAMILTON COUNTY, TENNESSEE;                         )       COURT FOR THE EASTERN
    DEBBIE MORRIS, With I/A; JIM                        )       DISTRICT OF TENNESSEE
    HAMMOND; RICHARD SHOCKLEY;                          )
    CAPT SWOPE; ROBERT JOHNSON,                         )
    )
    Defendants,                                  )
    )
    and                                                 )
    )
    OFFICER OWENS; OFFICER DANIEL,                      )
    )
    Defendants-Appellees.                        )
    )
    Before: MARTIN, GILMAN, and KETHLEDGE, Circuit Judges.
    PER CURIAM. This Court entered an order on March 5, 2013, remanding this appeal to the
    district court for the limited purpose of determining whether Eric Dewayne Smith’s late notice of
    appeal should be treated as a motion for an extension of time to file an appeal, pursuant to Federal
    Rule of Appellate Procedure 4(a)(5), and, if appropriate, for a ruling on the motion. The district
    court issued an order on March 21, 2013, denying Smith permission to file a delayed appeal. It
    determined that Smith had failed to show excusable neglect or good cause.
    The documents before the Court indicate that the district court entered its judgment on
    January 2, 2013. The notice of appeal filed on February 7, 2013 was late. See Fed. R. App. P. 4(a)
    and 26(a). Compliance with Federal Rule of Appellate Procedure 4(a) is a mandatory prerequisite
    No. 13-5186
    -2-
    that this Court may neither waive nor extend. Bowles v. Russell, 
    551 U.S. 205
    , 214 (2007); Ultimate
    Appliance CC v. Kirby Co., 
    601 F.3d 414
    , 415–16 (6th Cir. 2010). Federal Rule of Appellate
    Procedure 26(b) specifically provides that this Court may not enlarge the time for filing a notice of
    appeal except as authorized by Rule 4. See Fed. R. App. P. 26(b). Although the exceptions
    authorized in Rule 4 include excusable neglect and good cause, see Federal Rule of Appellate
    Procedure 4(a)(5)(A), Smith has failed to demonstrate either, as the district court concluded.
    Accordingly, it is ordered that the appeal is dismissed.
    

Document Info

Docket Number: 13-5186

Judges: Martin, Gilman, Kethledge

Filed Date: 4/18/2013

Precedential Status: Non-Precedential

Modified Date: 11/6/2024