Brian McKenzie v. Gary Maynard , 458 F. App'x 302 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6849
BRIAN E. MCKENZIE,
Plaintiff - Appellant,
v.
GARY D. MAYNARD,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:11-cv-00683-WDQ)
Submitted: November 30, 2011 Decided: December 19, 2011
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Brian E. McKenzie, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian E. McKenzie seeks to appeal the district court’s
order dismissing without prejudice his action construed as a
hybrid 28 U.S.C.A. § 2241 (West 2006 & Supp. 2011) petition and
42 U.S.C. § 1983 (2006) action. We dismiss the appeal for lack
of jurisdiction because the notice of appeal was not timely
filed.
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 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 order was entered on the docket
on March 25, 2011. The notice of appeal was filed, at the
earliest, on June 6, 2011. * Because McKenzie failed to file a
timely notice of appeal or to obtain an extension or reopening
*
A pro se prisoner’s notice of appeal is considered filed
at the moment it is delivered to prison authorities for mailing
to the court. Houston v. Lack, 487 U.S. 266, 276 (1988). We
assume that McKenzie’s notice of appeal was filed, at the
earliest, on June 6, 2011, the date he put on a letter
accompanying his notice of appeal. The envelope containing the
notice of appeal and the letter also is dated June 6, 2011, and
bears the notation “Outgoing Inmate Mail.”
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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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