Gibbs v. Styron

Filing 920060727


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-6641 FREDRICK GIBBS, Plaintiff - Appellant, versus CLIFTON STYRON; JAMES SHINGLETON, Defendants - Appellees, and RALPH THOMAS, Sheriff; CORPORAL HUNTER, Defendants. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (5:04-ct-00422-FL) Submitted: July 20, 2006 Decided: July 27, 2006 Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Fredrick Gibbs, Appellant Pro Se. Norwood Pitt Blanchard, III, CRANFILL, SUMNER & HARTZOG, LLP, Wilmington, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). - 2 - PER CURIAM: Fredrick Gibbs seeks to appeal the district court's order granting in part and denying in part the Defendants' motion to dismiss. 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). and jurisdictional." This appeal period is "mandatory 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 was entered on the docket on January 24, 2006. February 24, 2006.* The notice of appeal was filed one day late on Because Gibbs failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. appeal was timely, we would We further note that even if the dismiss the appeal for lack of jurisdiction because Gibbs is seeking to appeal an order that is neither a final order nor an appealable interlocutory or collateral 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). - 3 - * order. We also deny Gibbs' motion seeking an order compelling the We dispense with contentions are prison to give him copies of his medical record. oral argument because the facts and legal adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 4 -

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