Michael McRae v. Michael Easley

Filing 920090123

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7853 MICHAEL SCOTT MCRAE, Plaintiff - Appellant, v. MICHAEL EASLEY; BOYD BENNETT; MICHAEL S. HAMDEN; NORTH CAROLINA OFFICE OF INDIGENT DEFENSE SERVICE; H. L. JACKSON, Defendants - Appellees. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:08-cv-00353-GCM) Submitted: January 15, 2009 Decided: January 23, 2009 Before MOTZ and Circuit Judge. SHEDD, Circuit Judges, and HAMILTON, Senior Affirmed in part; dismissed in part by unpublished per curiam opinion. Michael Scott McRae, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Scott McRae seeks to appeal the district court's order dismissing his 42 U.S.C. 1983 (2000) complaint for failure to state a claim and the court's order denying his motions to amend and to appoint counsel. affirm in part. 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). is "mandatory and jurisdictional." Corr., 434 U.S. 257, 264 (1978) This appeal period We dismiss in part and Browder v. Dir., Dep't of (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). The district court's order dismissing the complaint was entered on the docket on August 11, 2008. The notice of Because appeal was filed, at the earliest, on October 3, 2008. McRae failed to file a timely notice of appeal or to obtain an Although McRae did not mention specifically the order dismissing the complaint in his notice of appeal, he attempts to challenge that order in his informal appellate brief. See Smith v. Barry, 502 U.S. 244, 245 (1992) (holding that document filed within appeal period and containing information required by Fed. R. App. P. 3(c), is functional equivalent of notice of appeal). 2 extension or reopening of the appeal period, we dismiss this portion of the appeal for lack of jurisdiction. Turning to the district court's order denying McRae's motions to amend and to appoint counsel, we note the McRae failed to challenge that order in his informal appellate brief. Thus, McRae has waived appellate review of those issues. See 4th Cir. R. 34(b) ("The Court will limit its review to the issues raised in the informal brief."). the district court's order. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional Accordingly, we affirm would process. AFFIRMED IN PART; DISMISSED IN PART 3

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