DePaola v. Virginia Department of Corrections , 626 F. App'x 52 ( 2015 )


Menu:
  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-7010
    ERIC J. DEPAOLA,
    Plaintiff - Appellant,
    v.
    VIRGINIA DEPARTMENT OF CORRECTIONS; HAROLD CLARKE; W. P.
    ROGERS; MARK ENGELKE; JOHN GARMAN; GEORGE HINKLE; TRACY RAY;
    RANDALL MATHENA; LINDA SHEAR; JAMES WADE; P. SCARBERRY,
    Defendants - Appellees.
    Appeal from the United States District Court for the Western
    District of Virginia, at Roanoke. James P. Jones, District Judge.
    (7:12-cv-00592-JPJ-RSB)
    Submitted:   November 30, 2015            Decided:   December 17, 2015
    Before MOTZ, KEENAN, and THACKER, Circuit Judges.
    Dismissed in part, affirmed in part by unpublished per curiam
    opinion.
    Eric Joseph DePaola, Appellant Pro Se.     John Michael Parsons,
    Assistant Attorney General, Richmond, Virginia, for Appellees.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Eric Joseph DePaola seeks to appeal the district court’s order
    granting Defendants’ motion for summary judgment on his 42 U.S.C.
    § 1983 (2012) claim alleging that prison food at Red Onion State
    Prison   does   not   conform   to   the   dietary   restrictions    of   his
    religion.     He also appeals the court’s order denying his Fed. R.
    Civ. P. 60(b) motion for reconsideration.
    We dismiss DePaola’s appeal from the district court’s order
    granting Defendants’ motion for summary judgment for lack of
    jurisdiction because the notice of appeal was not timely filed.
    Parties are accorded 30 days after the entry of the                 district
    court’s final judgment or order to note an appeal, Fed. R. App. P.
    4(a)(1)(A), unless the district court extends the appeal period
    under Fed. R. App. P. 4(a)(5), or reopens the appeal period under
    Fed. R. App. P. 4(a)(6).        “[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).
    The district court’s order granting Defendants’ motion for
    summary judgment was entered on the docket on August 12, 2014.
    The notice of appeal was filed on June 24, 2015. *           Furthermore,
    * For the purpose of this appeal, we assume that the date
    appearing on the notice of appeal is the earliest date it could
    have been properly delivered to prison officials for mailing to
    the court. Fed. R. App. P. 4(c); Houston v. Lack, 
    487 U.S. 266
    (1988).
    2
    DePaola’s Fed. R. Civ. P. 60(b) motion did not toll the period for
    him to timely note an appeal because he filed the motion more than
    28 days after the court’s order granting summary judgment.    See
    Fed. R. App. P. 4(a)(4)(A).     Because DePaola failed to file a
    timely notice of appeal or to obtain an extension or reopening of
    the appeal period, we dismiss DePaola’s appeal from the district
    court’s order granting summary judgment.
    With respect to DePaola’s appeal from the district court’s
    order denying his Fed. R. Civ. P. 60(b) motion, we have reviewed
    the record and find no reversible error.   Accordingly, we affirm
    this order.   See DePaola v. Virginia Dep’t of Corr., No. 7:12-cv-
    00592-JPJ-RSB (W.D. Va. June 17, 2015).
    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 IN PART
    AFFIRMED IN PART
    3
    

Document Info

Docket Number: 15-7010

Citation Numbers: 626 F. App'x 52

Judges: Motz, Keenan, Thacker

Filed Date: 12/17/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024