Applewhite v. Wilt ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-7201
EDGAR LEON APPLEWHITE,
Plaintiff - Appellant,
versus
GEORGE WILT; NURSE KNIGHT,
Defendants - Appellees,
and
HARNETT CORRECTIONAL CENTER,
Defendant.
No. 97-7202
EDGAR LEON APPLEWHITE,
Plaintiff - Appellant,
versus
JAMES B. HUNT, JR.,
Defendant - Appellee.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge; Joseph C. Howard, District Judge. (CA-96-815-5-CT-
BO3, CA-97-449-5-CT-H3)
Submitted: December 11, 1997 Decided: December 31, 1997
Before HALL and WILLIAMS, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Edgar Leon Applewhite, Appellant Pro Se. William McBlief, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In appeal No. 97-7201, Appellant, a North Carolina inmate,
filed an untimely notice of appeal. We dismiss for lack of juris-
diction. The time periods for filing notices of appeal are governed
by Fed. R. App. P. 4. These periods are "mandatory and jurisdic-
tional." Browder v. Director, Dep't of Corrections, 434 U.S. 257,
264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229
(1960)). Parties to civil actions have thirty days within which to
file in the district court notices of appeal from judgments or
final orders. See Fed. R. App. P. 4(a)(1). The only exceptions to
the appeal period are when the district court extends the time to
appeal under Fed. R. App. P. 4(a)(5) or reopens the appeal period
under Fed. R. App. P. 4(a)(6). The district court entered its order
on July 14, 1997; Appellant's notice of appeal was filed on August
20, 1997, which is beyond the thirty-day appeal period. Appellant's
failure to note a timely appeal or obtain an extension of the ap-
peal period leaves this court without jurisdiction to consider the
merits of Appellant's appeal. We therefore dismiss the appeal.
In appeal No. 97-7202, Appellant appeals the district court's
order denying relief on his 42 U.S.C. § 1983 (1994) complaint under
28 U.S.C.A. § 1915A (West Supp. 1997), (formerly 28 U.S.C. §
1915(d) (1994)). We have reviewed the record and the district
court's opinion accepting the magistrate judge's recommendation and
find that this appeal is frivolous. Accordingly, we dismiss the
appeal on the reasoning of the district court. Applewhite v. Hunt,
No. CA-97-449-5-CT-H3 (E.D.N.C. Aug. 11, 1997).
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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.
DISMISSED
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