Reginald Onqua Shabazz v. Ted Koehler, Dennis Hicky, Robert Naples

872 F.2d 1028 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Reginald Onqua SHABAZZ, Plaintiff-Appellant, v. Ted KOEHLER, Dennis Hicky, Robert Naples, Defendants-Appellees. No. 88-2282. United States Court of Appeals, Sixth Circuit. April 21, 1989. Before KEITH and KENNEDY, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge. ORDER [1] This matter is before the court upon consideration of appellant's response to this court's order of March 28, 1989, directing him to show cause as to why his appeal should not be dismissed for lack of jurisdiction. In his response appellant acknowledges that his notice of appeal was not timely delivered to the prison authorities as allowed by Houston v. Lack, --- U.S. ----, 108 S.Ct. 2379, 2383-85 (1988), and was untimely, but requests that the court excuse that jurisdictional defect on the ground that his receipt of the order under appeal was delayed due to illness and his transfer between Michigan penal institutions. [2] The record discloses that appellant filed a civil rights action pursuant to 42 U.S.C. Sec. 1983 in the District Court for the Western District of Michigan on February 24, 1988. As a part of that cause of action, appellant subsequently filed a motion for a preliminary injunction which the district court denied on the basis of a magistrate's report and recommendation on October 11, 1988. Although dated October 31, 1988, appellant's notice of appeal from that order was not filed in the district court until November 30, 1988. Accordingly, the notice of appeal was 20 days late. Fed.R.App.P. 4(a) and 26(a). [3] An appellant's failure 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 (6th Cir.1983). Fed.R.App.P. 26(a) specifically provides that this court cannot enlarge the time for filing a notice of appeal which begins to run upon the district court's entry of the order appealed from, not its receipt by appellant. As a result of those jurisdictional limitations, this court is without authority to excuse appellant's failure to file a timely notice of appeal in consequence of the delay in his receipt of the district court's order due to his illness and transfer to another penal institution. Rather, appellant was required to file a motion for an extension of time to file a late notice of appeal due to excusable neglect in the district court. Fed.R.App.P. 4(a)(5). [4] 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.