Eric Dewayne Smith v. Hamilton County, Tennessee

No. 13-5186
File Name: 13a0392n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ERIC DEWAYNE SMITH,
Plaintiff-Appellant,
v.
HAMILTON COUNTY, TENNESSEE;
DEBBIE MORRIS, With I/A; JIM
HAMMOND; RICHARD SHOCKLEY;
CAPT SWOPE; ROBERT JOHNSON,
Defendants,
and
OFFICER OWENS; OFFICER DANIEL,
Defendants-Appellees.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE
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

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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.

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