Petersen v. Price ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6080
ALLAN A. PETERSEN,
Plaintiff - Appellant,
v.
BRIAN PRICE; MICHELLE SPEARS; DOMINIC GUTIERREZ; SUSAN
MCCLINTOCK; MAVIS HOLYFIELD,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:06-cv-00106-FPS-JSK)
Submitted: December 17, 2009 Decided: January 7, 2010
Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Allan A. Petersen, Appellant Pro Se. Betsy C. Jividen, Acting
United States Attorney, Wheeling, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allan A. Petersen appeals the district court’s order
dismissing with prejudice his civil rights complaint. We
dismiss the appeal for lack of jurisdiction because the notice
of appeal was not timely filed.
When the United States or its officer or agency is a
party, the notice of appeal must be filed no more than sixty
days after the entry of the district court’s final judgment or
order, Fed. R. App. P. 4(a)(1)(B), 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); see United States v. Urutyan, 564 F.3d 679, 685 (4th
Cir. 2009) (discussing Bowles and the appeal periods under Fed.
R. App. P. 4(a)).
The district court’s order dismissing Petersen’s
complaint was entered on September 28, 2007, and the sixty-day
appeal period expired on November 27, 2007. We have twice
remanded this case to the district court to determine whether
Petersen timely filed his notice of appeal or could establish
good cause or excusable neglect to extend the appeal period.
See Peterson v. Price, 324 F. App’x 230, 231 (4th Cir. 2009)
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(No. 08-6080); Peterson v. Price, 272 F. App’x 309 (4th Cir.
2008) (No. 08-6080).
In its most recent order, the district court concluded
the notice of appeal was untimely because it was filed, at the
earliest, on December 3, 2007. Fed. R. App. P. 4(c); Houston v.
Lack, 487 U.S. 266 (1988). In reaching this conclusion, the
district court relied on evidence submitted by Defendants to
refute the earlier filing date Petersen asserted. Petersen did
not dispute this evidence in the district court and offers no
contrary position on appeal. The district court further
concluded Petersen had not established the good cause or
excusable neglect required to extend the appeal period.
We agree with the district court’s determination
regarding the timeliness of the notice of appeal. Because
Petersen failed to file a timely notice of appeal or to obtain
an extension of the appeal period, we dismiss the appeal. 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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