Corey Jones v. McCoy

USCA4 Appeal: 22-7361 Doc: 16 Filed: 04/28/2023 Pg: 1 of 2
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-7361
COREY J. JONES,
Plaintiff - Appellant,
v.
MCCOY, C/O at Keen Mountain Correctional Center; B. HURLEY, C/O at Keen
Mountain Correctional Center; SHANNON KEEN; S. K. COLEMAN, C/O at Keen
Mountain Correctional Center; CASEY, C/O at Keen Mountain Correctional Center;
C. SAUCIER, Nurse at Keen Mountain Correctional Center; OWENS, Major at
Keen Mountain Correctional Center; CARL MANIS, Regional Administrator for the
Virginia Department of Corrections Western Region,
Defendants - Appellees.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, District Judge. (7:21-cv-00610-EKD-JCH)
Submitted: April 25, 2023 Decided: April 28, 2023
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and MOTZ, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Corey J. Jones, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 22-7361 Doc: 16 Filed: 04/28/2023 Pg: 2 of 2
PER CURIAM:
Corey J. Jones appeals the district court’s order denying his motion to reconsider
the court’s prior order dismissing without prejudice his 42 U.S.C. § 1983 complaint for
failure to prosecute. * Because Jones’ motion was filed more than 28 days after entry of the
district court’s dismissal order, it is properly construed as a Fed. R. Civ. P. 60(b) motion.
See Fed. R. Civ. P. 59(e). Upon review, we conclude that the district court did not abuse
its discretion by denying Jones’ motion. See Aikens, 652 F.3d at 501 (noting standard of
review). We therefore affirm the district court’s order. Jones v. McCoy, No. 7:21-cv-
00610-EKD-JCH (W.D. Va. Oct. 20, 2022). 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.
AFFIRMED
*
To the extent Jones seeks to appeal the district court’s order dismissing his
complaint, or its earlier order denying his motion for appointment of counsel, those orders
are not properly before us. “[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). Parties in civil
cases have 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 or reopens the appeal
period, Fed. R. App. P. 4(a)(5)-(6). The district court entered its order dismissing Jones’
complaint on May 2, 2022. Jones noted this appeal, at the earliest, on November 15, 2022.
Fed. R. App. P. 4(c)(1); see Houston v. Lack, 487 U.S. 266, 276 (1988). And although the
notice of appeal is timely as to the motion to reconsider, because Jones filed that motion
more than 28 days after entry of the dismissal order, an appeal from that order does not
bring up the court’s prior orders for appellate review. See Fed. R. App. P. 4(a)(4)(A)(iv),
(vi); Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011) (en banc) (explaining that appeal
from order denying Rule 60(b) motion does not bring up underlying order for review).
Thus, our review is limited to the district court’s order denying Jones’ motion to reconsider.
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