DePaola v. Virginia Department of Corrections

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7010
ERIC J. DEPAOLA,
Plaintiff - Appellant,
v.
VIRGINIA DEPARTMENT OF CORRECTIONS; HAROLD CLARKE; W. P.
ROGERS; MARK ENGELKE; JOHN GARMAN; GEORGE HINKLE; TRACY RAY;
RANDALL MATHENA; LINDA SHEAR; JAMES WADE; P. SCARBERRY,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, District Judge.
(7:12-cv-00592-JPJ-RSB)
Submitted: November 30, 2015 Decided: December 17, 2015
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Eric Joseph DePaola, Appellant Pro Se. John Michael Parsons,
Assistant Attorney General, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Joseph DePaola seeks to appeal the district court’s order
granting Defendants’ motion for summary judgment on his 42 U.S.C.
§ 1983 (2012) claim alleging that prison food at Red Onion State
Prison does not conform to the dietary restrictions of his
religion. He also appeals the court’s order denying his Fed. R.
Civ. P. 60(b) motion for reconsideration.
We dismiss DePaola’s appeal from the district court’s order
granting Defendants’ motion for summary judgment for lack of
jurisdiction because the notice of appeal was not timely filed.
Parties are accorded 30 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 granting Defendants’ motion for
summary judgment was entered on the docket on August 12, 2014.
The notice of appeal was filed on June 24, 2015. * Furthermore,
* For the purpose 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. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).
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DePaola’s Fed. R. Civ. P. 60(b) motion did not toll the period for
him to timely note an appeal because he filed the motion more than
28 days after the court’s order granting summary judgment. See
Fed. R. App. P. 4(a)(4)(A). Because DePaola failed to file a
timely notice of appeal or to obtain an extension or reopening of
the appeal period, we dismiss DePaola’s appeal from the district
court’s order granting summary judgment.
With respect to DePaola’s appeal from the district court’s
order denying his Fed. R. Civ. P. 60(b) motion, we have reviewed
the record and find no reversible error. Accordingly, we affirm
this order. See DePaola v. Virginia Dep’t of Corr., No. 7:12-cv-
00592-JPJ-RSB (W.D. Va. June 17, 2015).
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
DISMISSED IN PART
AFFIRMED IN PART
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