Keith Dunn v. City of Rocky Mount ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1693
KEITH OTIS DUNN,
Plaintiff - Appellant,
v.
CITY OF ROCKY MOUNT, NORTH CAROLINA; DONALD MOSLEY, Officer,
Rocky Mount Police Department, Individually and in his
Official capacity; ROCKY MOUNT POLICE DEPARTMENT,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:10-cv-00028-FL)
Submitted: November 30, 2012 Decided: December 20, 2012
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Harold E. Lucas, Jr., Durham, North Carolina, for Appellant. J.
Nicholas Ellis, POYNER SPRUILL LLP, Rocky Mount, North Carolina;
Chad W. Essick, POYNER SPRUILL LLP, Raleigh, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Otis Dunn seeks to appeal the district court’s
order granting summary judgment to the appellees. We are
constrained to dismiss the appeal for lack of jurisdiction
because Dunn’s notice of appeal was not timely filed. Bowles v.
Russell, 551 U.S. 205, 213 (2007).
Parties are accorded thirty 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, 551 U.S. at 214. Further, a district
court is without authority to ignore or grant a party leave from
complying with the various statute-based procedural rules
governing a timely appeal. Id. at 213-15; see 28 U.S.C. § 2107(2006).
The district court’s order denying Dunn’s Fed. R. Civ.
P. 59(e) motion was entered on the docket on August 18, 2011.
The thirty-day period in which to file a timely notice of appeal
expired on September 19, 2011. Fed. R. App. P. 26(a)(1)(C).
After Dunn failed to do so, his time for seeking an extension of
the appeal period under Rule 4(a)(5) began to run on September
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20, 2011, and expired thirty days later on October 19, 2011. 28
U.S.C. § 2107(c); Fed. R. App. P. 4(a)(5)(A)(i).
Accordingly, Dunn’s request for an extension of the
appeal period, filed in the district court on October 20, 2011,
was one day out of time. Fed. R. Civ. P. 5(d)(2). Because the
district court was without authority to grant the untimely
motion, Dunn’s notice of appeal was untimely. See Bowles, 551
U.S. at 214 (courts have no authority to create equitable
exceptions to jurisdictional rules); Fed. R. Civ. P. 5(d)(2);
see also Goode v. Winkler, 252 F.3d 242, 245-46 (2d Cir. 2001)
(district court had no authority to consider untimely pro se
Fed. R. App. P. 4(a)(5) motion).
Because Dunn failed to file a timely notice of appeal,
we dismiss the appeal for lack of jurisdiction. 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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