Mandrey Davis v. Jimmy Hilbourn ( 2019 )


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  •                                      UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 18-7339
    MANDREY D. DAVIS,
    Plaintiff - Appellant,
    v.
    JIMMY HILBOURN; VICKIE HARDIE; JANE DOE; JOHN DOE; JOHN DOE,
    Defendants - Appellees.
    Appeal from the United States District Court for the Eastern District of North Carolina, at
    Raleigh. James C. Dever III, District Judge. (5:14-ct-03324-D)
    Submitted: February 28, 2019                                      Decided: March 6, 2019
    Before NIEMEYER, MOTZ, and KING, Circuit Judges.
    Remanded by unpublished per curiam opinion.
    Mandrey D. Davis, Appellant Pro Se. Yvonne Bullock Ricci, Assistant Attorney
    General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
    for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Mandrey D. Davis seeks to appeal the district court’s order adopting the
    magistrate judge’s recommendation and denying relief on Davis’ 
    42 U.S.C. § 1983
    (2012) complaint. 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). The district court may,
    however, extend the time to file a notice of appeal if a party moves for an extension of
    the appeal period within 30 days after the expiration of the original appeal period and
    demonstrates excusable neglect or good cause to warrant an extension. Fed. R. App. P.
    4(a)(5); Washington v. Bumgarner, 
    882 F.2d 899
    , 900-01 (4th Cir. 1989). “[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 was entered on the docket on August 28, 2018. The
    notice of appeal was filed on October 10, 2018, after the expiration of the 30-day appeal
    period but within the excusable neglect period. * Because Davis’ notice of appeal offered
    some excuse for his tardiness and included a request for the court to extend the appeal
    period, we construe it as a timely request for an extension of time in which to file an
    appeal. Accordingly, we remand the case for the limited purpose of allowing the district
    court to determine whether the time for filing a notice of appeal should be extended under
    *
    For the purpose of this appeal, we assume that the date appearing on the
    postmark of the envelope containing 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)(1)(A)(ii); Houston v. Lack, 
    487 U.S. 266
     (1988).
    2
    Fed. R. App. P. 4(a)(5). The record, as supplemented, will then be returned to this court
    for further consideration.
    REMANDED
    3
    

Document Info

Docket Number: 18-7339

Filed Date: 3/6/2019

Precedential Status: Non-Precedential

Modified Date: 4/18/2021