Davis v. Wade

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7309
ROBERT LEE DAVIS,
Plaintiff - Appellant,
versus
MICHAEL WADE, Sheriff Henrico County; LINDA
RAY, Medical Director; DR. OFOGH, Chief
Medical Doctor; PHY-AMERICAN CORRECTIONAL
HEALTHCARE, INCORPORATED,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CA-02-165-1)
Submitted: January 27, 2005 Decided: February 2, 2005
Before LUTTIG and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Robert Lee Davis, Appellant Pro Se. William Fisher Etherington,
BEALE, BALFOUR, DAVIDSON & ETHERINGTON, P.C., Richmond, Virginia;
M. Pierce Rucker, II, Todd David Anderson, SANDS, ANDERSON, MARKS
& MILLER, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Lee Davis seeks to appeal the district court’s
order granting summary judgment for defendants in a 42 U.S.C.
§ 1983 (2000) 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). This appeal period is “mandatory
and jurisdictional.” Browder v. Director, Dep’t of Corr., 434 U.S.
257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220,
229 (1960)).
In this case, the district court, by order entered 287
days after entry of judgment, attempted to reopen the appeal
period. However, all the conditions set forth in Fed. R. App. P.
4(a)(6) were not satisfied, in that no motion was filed, the
district court made no finding as to prejudice, and the court’s
order was entered beyond the 180-day time period. In addition, the
notice of appeal itself was not filed within fourteen days of the
order, as the rule requires.
Thus, the district court lacked jurisdiction to reopen
the appeal period and the appeal must be dismissed for lack of
jurisdiction. We deny Davis’s motion to amend issues on appeal. We
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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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