Basir Razzak v. Ackoyt , 698 F. App'x 146 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6664
BASIR MATEEN RAZZAK,
Plaintiff - Appellant,
v.
ACKOYT, Nurse Practitioner; A. GRIZZARD; CCS CORRECT CARE
SOLUTIONS, MEDICAL AGENCY; FORSYTH COUNTY DETENTION
CENTER SERVICE BUREAU,
Defendants – Appellees,
and
DR. RHOADES,
Defendant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta Copeland Biggs, District Judge. (1:15-cv-01016-LCB-LPA)
Submitted: September 29, 2017 Decided: October 6, 2017
Before MOTZ, WYNN, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Basir Mateen Razzak, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Basir Mateen Razzak seeks to appeal the district court’s order accepting the
recommendation of the magistrate judge and dismissing Razzak’s 42 U.S.C. § 1983 (2012)
complaint. “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional
requirement,” Bowles v. Russell, 551 U.S. 205, 214 (2007), and the party asserting
appellate jurisdiction carries the burden of proving it, Wheeling Hosp., Inc. v. Health Plan
of the Upper Ohio Valley, Inc., 683 F.3d 577, 583-84 (4th Cir. 2012). In a civil case like
Razzak’s, the notice of appeal must be filed within 30 days after entry of judgment. Fed.
R. App. P. 4(a)(1)(A). When the appellant is incarcerated, the notice of appeal is
considered filed on the date it was properly delivered to prison officials for mailing. Fed.
R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 267 (1988). The timely filing of a
motion to alter or amend judgment tolls the start of the time to file a notice of appeal. Fed.
R. App. P. 4(a)(4)(A)(iv). “A motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e).
In this case, the district court dismissed Razzak’s complaint on February 22, 2016.
Razzak filed a motion to alter or amend judgment that was dated March 4, 2016, but was
not filed on the district court’s docket until March 31, 2016. Razzak then filed a notice of
appeal on April 18, 2016, well after the expiration of the appeal period, unless the motion
to alter or amend judgment tolled the start of that period. We previously remanded for the
limited purpose of determining when Razzak delivered his motion to alter or amend
judgment to prison officials for mailing, explaining that, unless that motion was timely
filed to toll the appeal period, his appeal was untimely. On remand, Razzak refused to
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respond to the district court’s inquiry regarding when he filed the motion to alter or amend
judgment. We therefore conclude that Razzak has failed to carry his burden to establish
appellate jurisdiction, and we dismiss Razzak’s appeal as untimely. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
DISMISSED
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