Burke v. Williams ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-2134
CHRISTOPHER A. BURKE,
Plaintiff - Appellant,
versus
G. T. WILLIAMS; L. A. CORNER, Court and Legal
Services; E.M.G., Court and Legal Services;
MS. MORTON, Records Dept., Lunenburg Correc-
tional Center; E. PRESTON GRISSOM, Judge,
First Judicial Circuit of Virginia; RANNIE C.
BROWN, Secretary of Judge,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Norfolk. Rebecca B. Smith, District Judge.
(CA-99-863)
Submitted: December 16, 1999 Decided: December 27, 1999
Before MURNAGHAN and MOTZ, Circuit Judges, and BUTZNER, Senior Cir-
cuit Judge.
Dismissed by unpublished per curiam opinion.
Christopher A. Burke, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Christopher Burke seeks to appeal the district court’s order
dismissing without prejudice his complaint alleging violations of
due process and equal protection. Burke has filed a motion in this
court to enjoin the Virginia Department of Corrections and the
Circuit Courts of Chesapeake from executing Burke’s plea agreement.
We deny his motion and dismiss the appeal.
The district court dismissed Burke’s complaint without preju-
dice because Burke failed to comply with the court’s order to file
answers to interrogatories designed to particularize his complaint.
Such dismissal without prejudice is not generally appealable. See
Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064,
1066-67 (4th Cir. 1993).
Furthermore, we lack jurisdiction because Burke’s notice of
appeal was not timely filed. The district court’s order was
entered on its docket on July 19, 1999. Burke’s notice of appeal
was filed on August 19, 1999. Parties are accorded thirty days
after entry of the district court’s final judgment or order to note
an appeal, see Fed. R. App. P. 4(b)(1), 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). This appeal
period is “mandatory and jurisdictional.” Browder v. Director,
Dep’t of Corrections, 434 U.S. 257, 264 (1978) (quoting United
States v. Robinson, 361 U.S. 220, 229 (1960)). Because Burke
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failed to file a timely notice of appeal or to obtain an extension
or reopening of the appeal period, we lack jurisdiction over the
appeal.
For these reasons, we dismiss Burke’s appeal and deny his mo-
tion for injunctive relief. We dispense with oral argument because
the facts and legal contentions are adequately presented in the ma-
terials before the court and argument would not aid the decisional
process.
DISMISSED
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