McBride v. Virginia Penal System , 115 F. App'x 158 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7661
JOHN DAVID MCBRIDE,
Plaintiff - Appellant,
versus
THE STATE OF VIRGINIA PENAL SYSTEM; STANLEY P.
KLEIN, Judge,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-03-690)
Submitted: December 9, 2004 Decided: December 17, 2004
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John David McBride, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John David McBride seeks to appeal the district court’s
order dismissing without prejudice his 42 U.S.C. § 1983 (2000)
action pursuant to 42 U.S.C. §§ 1915(e)(2), 1915A (2000) and
Heck v. Humphrey, 512 U.S. 477 (1994). We dismiss the appeal for
lack of jurisdiction because the notice of appeal was not timely
filed.
Parties are given 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), 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). This appeal period is “mandatory
and jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S.
257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220,
229 (1960)).
The district court’s order adopting the magistrate’s
recommendation was entered on the docket on July 9, 2004. McBride
filed a timely motion for reconsideration on July 21, 2004. The
district court’s order denying McBride’s motion was entered on the
docket on August 2, 2004. The notice of appeal was filed on
September 25, 2004.* Because McBride failed to file a timely
*
For purposes of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to the
court. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266,
270-72 (1988).
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notice of appeal or to obtain an extension or reopening 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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