Nesbitt v. Warden Tyger River Correctional Institution , 614 F. App'x 675 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7626
BRIAN KEITH NESBITT,
Petitioner - Appellant,
v.
WARDEN TYGER RIVER CORRECTIONAL INSTITUTION,
Respondent - Appellee,
and
STATE OF SOUTH CAROLINA,
Respondent.
No. 15-6814
BRIAN KEITH NESBITT,
Petitioner - Appellant,
v.
WARDEN TYGER RIVER CORRECTIONAL INSTITUTION,
Respondent - Appellee,
and
STATE OF SOUTH CAROLINA,
Respondent.
Appeals from the United States District Court for the District
of South Carolina, at Rock Hill. Richard Mark Gergel, District
Judge. (0:13-cv-02602-RMG)
Submitted: August 24, 2015 Decided: August 31, 2015
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
14-7626, Dismissed; 15-6814, Affirmed by unpublished per curiam
opinion.
Brian Keith Nesbitt, Appellant Pro Se. Donald John Zelenka,
Senior Assistant Attorney General, Kaycie Smith Timmons,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In these consolidated appeals, Brian Keith Nesbitt seeks to
challenge the district court’s order adopting the magistrate
judge’s recommendation and dismissing his 28 U.S.C. § 2254
(2012) petition (No. 14-7626), and the court’s order denying his
Fed. R. Civ. P. 59(e) motion for reconsideration of its order,
entered after a limited remand, finding that Nesbitt’s notice of
appeal was not timely filed (No. 15-6814). See Nesbitt v.
Warden, Tyger River Corr. Inst., 599 F. App’x 68 (4th Cir.
2015). We dismiss the appeal in No. 14-7626 for lack of
jurisdiction because the notice of appeal was not timely filed,
and affirm the contested order in No. 15-6814.
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 was entered on the docket on
September 9, 2014. The district court found on remand that the
notice of appeal was most likely filed on October 15, 2014.
Because Nesbitt failed to file a timely notice of appeal or to
3
obtain an extension or reopening of the appeal period, we
dismiss the appeal in No. 14-7626.
In No. 15-6814, Nesbitt appeals the district court’s order
denying his Rule 59(e) motion. We have reviewed the record and
find no reversible error. Accordingly, we affirm for the
reasons stated by the district court. Nesbitt v. Warden Tyger
River Corr. Inst., 0:13-cv-02602-RMG (D.S.C. May 26, 2015).
Accordingly, we dismiss the appeal in No. 14-7626 and
affirm the district court’s order in No. 15-6814. We deny
Nesbitt’s motions in No. 14-7626 to compel discovery, to appoint
counsel, and for a preliminary injunction and a temporary
restraining order, and his motions in No. 15-6814 to appoint
counsel and for a preliminary injunction and temporary
restraining order. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
material before this court and argument will not aid the
decisional process.
No. 14-7626, DISMISSED;
No. 15-6814, AFFIRMED
4