West v. City of Norfolk , 257 F. App'x 606 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1566
LARRY C. WEST,
Plaintiff - Appellant,
versus
CITY OF NORFOLK; TAMELE Y. HOBSON,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:07-cv-00009-RAJ)
Submitted: October 17, 2007 Decided: December 7, 2007
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Larry C. West, Appellant Pro Se. Melvin Wayne Ringer, CITY
ATTORNEY’S OFFICE, Norfolk, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry C. West seeks to appeal the district court’s order
granting Defendants’ motion to dismiss his action under 42 U.S.C.
§ 1983 (2000). We are constrained to dismiss the appeal for lack
of jurisdiction because the notice of appeal was not timely filed.
The time limits for taking an appeal in a civil case are
set forth in Rule 4(a) of the Federal Rules of Appellate Procedure,
which carries 28 U.S.C. § 2107 into practice. See Bowles v.
Russell, 127 S. Ct. 2360, 2363 (2007). Parties 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
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). The
Supreme Court recently instructed in Bowles that the failure to
file a notice of appeal within the statutory time limits deprives
the Court of Appeals of jurisdiction. See 127 S. Ct. at 2366.
Here, the district court’s order was entered on the
docket on April 16, 2007. The court erroneously stated therein
that “written notice [of appeal] must be received by the Clerk
within sixty (60) days from the date of this Order.” In actuality,
West had only thirty days to note his appeal. See Fed. R. App. P.
4(a)(1)(A) (carrying into practice 28 U.S.C. § 2107(a)). West, who
is proceeding pro se, filed his notice of appeal on June 12, 2007
— within the sixty-day period noted in the district court’s order,
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but outside the thirty-day period allowed by statute. He did not
seek to extend or reopen the appeal period (and understandably so,
since he surely believed that he timely noted his appeal by
complying with the district court’s order). Unfortunately for
West, while we once could have considered excusing his untimely
filing under the “unique circumstances” doctrine, in the wake of
Bowles we can no longer do so. See Bowles, 127 S. Ct. at 2366(“Today we make clear that the timely filing of a notice of appeal
in a civil case is a jurisdictional requirement. Because this
Court has no authority to create equitable exceptions to
jurisdictional requirements, use of the ‘unique circumstances’
doctrine is illegitimate.”).
Because West failed to file a timely notice of appeal or
obtain an extension or reopening of the appeal period, we must
dismiss the appeal. We deny West’s motion to challenge and his
motion to file form with this court. Finally, 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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