Robert Allen Gallagher v. Dean Curl, Judge, Rex Yeagley, Sheriff , 872 F.2d 1025 ( 1989 )

872 F.2d 1025

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Robert Allen GALLAGHER, Plaintiff-Appellant,
v.
Dean CURL, Judge, Rex Yeagley, Sheriff, Defendants-Appellees.

No. 88-4165.

United States Court of Appeals, Sixth Circuit.

March 31, 1989.

Before MERRITT and DAVID A. NELSON, Circuit Judges, and LIVELY, Senior Circuit Judge.

ORDER

1

This matter is before the court upon consideration of appellant's response to this court's order of February 1, 1989, directing him to show cause as to why his appeal should not be dismissed for lack of jurisdiction. In his response appellant has not addressed the specific jurisdictional problem raised in this court's order of February 1, 1989, but has instead discussed the issues which he believes necessitate the reversal of the district court's final order on the merits.

2

Review of the record indicates that the district court entered an order denying plaintiff's motion to reconsider its earlier judgment dismissing his civil rights action on June 23, 1988. Pursuant to Fed.R.App.P. 4(a)(4), appellant was required to file a notice of appeal by July 25, 1988. Appellant, however, did not take that action until December 12, 1988. Accordingly, the notice of appeal was 140 days late. Fed.R.App.P. 4(a) and 26(a).

3

The failure of an appellant to file a timely notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed.R.App.P. 4(a) is a mandatory jurisdictional prerequisite which this court can neither waive nor extend. Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 n. 5 (6th Cir.1983). Moreover, the record discloses that appellant did not seek or receive from the district court an extension of time for filing a notice of appeal due to excusable neglect. Fed.R.App.P. 4(a)(5).

4

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.