Jorge Gevara v. F. Hubbard ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7523
JORGE GEVARA,
Plaintiff - Appellant,
v.
F. B. HUBBARD, Superintendent; CRUTCHFIELD, Assist.
Superintendent of Programs; DEBRA DUNCAN, R.N. - Medical
Administrator; C. FIELDS, Correctional Officer; DAVID
OSTORNE, Asst. Director Prisons; PAULA Y. SMITH, Medical
Director of Prisons; THEODIS BECK, Secretary of Prisons; D.
JONES MURPHY, Nurse; AMY S. MACKEY; PETER KEYSER; PERRITT,
Unit Manager; T. JONES, Asst. Unit Manager; P. BETHEA,
Correctional Officer; PURCEL, Correctional Officer; QUICK,
Sergeant; MILLER, Sergeant; ASHE HARRIS, Notary Public; BOYD
BENNETT,
Defendants - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:09-cv-00681-WO-LPA)
Submitted: December 15, 2015 Decided: December 18, 2015
Before GREGORY and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Jorge Gevara, Appellant Pro Se. Lisa Yvette Harper, Assistant
Attorney General, Fayetteville, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jorge Gevara seeks to appeal the district court’s judgment
dismissing his 42 U.S.C. § 1983 (2012) civil action. We dismiss
the appeal 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). “Lack of notice of
the entry does not affect the time for appeal or relieve-or
authorize the court to relieve-a party for failing to appeal
within the time allowed, except as allowed by Federal Rule of
Appellate Procedure (4)(a).” Fed. R. Civ. P. 77(d)(2).
Rule 4(a)(6) of the Federal Rules of Appellate Procedure
permits the reopening of the appeal period if a party has not
received notice of the judgment or order within 21 days after
entry, but the motion requesting such relief must be filed
within 180 days after entry of the judgment or 14 days after the
party received notice of the judgment or order, whichever is
earlier. Fed. R. App. P. 4(a)(6). The time requirements of
Rule 4(a) are mandatory and jurisdictional. Bowles v. Russell,
551 U.S. 205, 208-14 (2007).
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The district court’s order was entered on the docket on
June 25, 2014. Gevara delivered a notice of appeal to prison
officials for mailing on September 22, 2015. See Fed. R. App.
P. 4(c); Houston v. Lack, 487 U.S. 266, 276 (1988). In the
notice, Gevara claimed he “never received any judgment or notice
about any dismissal.” However, the 180-day reopening period
expired well before Gevara filed his notice of appeal. Thus,
Gevara is not eligible for reopening of the appeal period.
Nunley v. City of Los Angeles, 52 F.3d 792, 794-95 (9th Cir.
1995); Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d 226, 228
(4th Cir. 1981).
Accordingly, because Gevara failed to file a timely notice
of appeal or to obtain an extension of the appeal period and is
not eligible for reopening of the appeal period, we dismiss the
appeal. 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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