Ronald McCauley v. Lieutenant Riley , 459 F. App'x 235 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6947
RONALD LEE MCCAULEY,
Plaintiff - Appellant,
v.
LIEUTENANT RILEY, HFDC; SERGEANT ROSEMARY SANDERS, HFDC;
HEAD NURSE PAULA NLN, HFDC,
Defendants – Appellees,
and
HILL FINKLEA DETENTION CENTER; BERKELEY COUNTY DETENTION
CENTER,
Defendants.
No. 11-7203
RONALD LEE MCCAULEY,
Plaintiff - Appellant,
v.
LIEUTENANT RILEY, HFDC; SERGEANT ROSEMARY SANDERS, HFDC;
HEAD NURSE PAULA NLN, HFDC,
Defendants – Appellees,
and
HILL FINKLEA DETENTION CENTER, a/k/a Berkeley County
Detention Center,
Defendant.
Appeals from the United States District Court for the District
of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:10-cv-01700-HMH)
Submitted: December 13, 2011 Decided: December 22, 2011
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
No. 11-6947 dismissed; No. 11-7203 affirmed by unpublished per
curiam opinion.
Ronald Lee McCauley, Appellant Pro Se. Joseph Camden Wilson,
PIERCE, HERNS, SLOAN & MCLEOD, Charleston, South Carolina;
Nosizi Ralephata, John Smith Wilkerson, III, TURNER, PADGET,
GRAHAM & LANEY, PA, Charleston, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Ronald Lee McCauley appeals the district court’s order
granting summary judgment to the Defendants (No. 11-6947) and
the district court’s order denying his request to reopen the
appeal period (No. 11-7203). We grant the Appellees’ motion to
dismiss in the former appeal and affirm the district court’s
order in the latter.
Parties to a civil action 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 v. Russell, 551
U.S. 205, 214 (2007).
The district court’s judgment was entered on the
docket on March 28, 2011. McCauley’s notice of appeal was not
filed until 108 days later, on July 14, 2011. Along with his
untimely notice of appeal, McCauley filed a motion to extend the
appeal period. McCauley claimed that he had not received the
district court’s judgment until that very day. McCauley had
apparently been transferred between facilities in the South
Carolina Department of Corrections (“SCDC”) in late January 2011
but had not notified the Clerk of his change of address until
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July 2011. The copy of the district court’s judgment sent to
McCauley in March 2011 had been returned undeliverable.
McCauley contends that any mail addressed to him with his inmate
number should have been forwarded to him within the SCDC system.
An extension of the appeal period pursuant to Fed. R.
App. P. 4(a)(5) was not available to McCauley because of the
lateness of his motion. Thus, the district court properly
considered McCauley’s motion as one to reopen the appeal period
pursuant to Fed. R. App. P. 4(a)(6). Under that subsection, the
district court may reopen the appeal period for fourteen days if
it finds that: (1) a party entitled to notice of entry of
judgment did not receive notice within twenty-one days after
judgment, (2) the party moved to reopen the appeal period either
within 180 days of judgment or within fourteen days of receiving
notice of the judgment, and (3) no party would be prejudiced.
Fed. R. App. P. 4(a)(6). Rule 4(a)(6) is permissive, and allows
a district court to deny a motion arising under that rule even
if the movant meets the rule’s three requirements. See
Benavides v. Bureau of Prisons, 79 F.3d 1211, 1214 (D.C. Cir.
1996); In re Jones, 970 F.2d 36, 39 (5th Cir. 1992).
We conclude that the district court did not abuse its
discretion in denying McCauley’s motion. McCauley would have
received timely notice of the district court’s judgment if he
had properly apprised the Clerk of his change of address. We
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therefore affirm the district court’s order denying McCauley’s
motion to reopen the appeal period. Accordingly, McCauley’s
appeal of the district court’s judgment is untimely and we lack
jurisdiction to resolve it. The Appellees’ motion to dismiss
McCauley’s appeal of the district court’s judgment is granted.
McCauley’s motions for appointment of counsel are denied. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
No. 11-6947 DISMISSED
No. 11-7203 AFFIRMED
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