Richard Schmidt v. Mike Kenney

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3386
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Richard Allen Schmidt, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Mike Kenney; Larry Wayne; Harold * District of Nebraska.
Clarke; Sharon Lindgren; Jeff Uttecht; *
Mousa Drammeh; Scott Hooper; John * [UNPUBLISHED]
Munoz; Mike Salomons; Rex Richard; *
Kyle Poppert; Larinda Parker; Georgia *
Oehlert; Ron Limbeck; Candace Hanes; *
Jane Grabenstein-Chandler; Cheryl *
Flinn; Donn Beaver, *
*
Appellees. *
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Submitted: September 15, 2004
Filed: September 20, 2004
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Before MURPHY, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Former Nebraska inmate Richard A. Schmidt seeks to appeal from the district
court’s dismissal of his 42 U.S.C. § 1983 action in which he claimed deliberate
indifference to his serious medical needs. Having carefully reviewed the record, we
dismiss the appeal as untimely. See Krein v. Norris, 250 F.3d 1184, 1187 (8th Cir.
2001) (jurisdiction will be raised sua sponte when there is indication it is lacking,
even if parties concede issue).
Schmidt did not timely file his notice of appeal (NOA), because he filed it 47
days after the district court entered judgment, see Fed. R. App. P. 4(a)(1) (in civil case
where agency of United States is not party, NOA must be filed within 30 days of
district court’s entry of judgment); and the district court had no authority to extend
the NOA filing deadline absent a motion by Schmidt, see Fed. R. App. P. 4(a)(5)
(district court may extend time to file NOA based on excusable neglect or good cause
“upon motion filed” no later than 30 days after deadline for filing NOA); Campbell
v. White, 721 F.2d 644, 645 (8th Cir. 1983) (Rule 4(a)(5) clearly and unambiguously
requires motion, and late-filed NOA may not be considered extension motion).
Accordingly, we dismiss the appeal. See Burgs v. Johnson County, Iowa, 79
F.3d 701, 702 (8th Cir. 1996) (per curiam) (timely NOA is jurisdictional).
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