JaJa Okera v. Jon Ozmint

Filing 920090630

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6380 JAJA DUMISANI BAAKO OKERA, a/k/a Michael Burns, Plaintiff Appellant, v. JON OZMINT, SCDC Director; JANICE PHILLIPS, Medical Review Coordinator; WILLIE L. EAGLETON, Evans Correctional Institution Warden; C. GARDNER, Dental Assistant, Defendants Appellees. Appeal from the United States District Court for the District of South Carolina, at Anderson. Terry L. Wooten, District Judge. (8:07-cv-01272-TLW) Submitted: June 22, 2009 Decided: June 30, 2009 Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. JaJa Dumisani Baako Okera, Appellant Pro Se. D. McEachin, Jr., Florence, South Carolina, for Appellees. Malloy Unpublished opinions are not binding precedent in this circuit. PER CURIAM: JaJa Dumisani Baako Okera seeks to appeal the district court's order denying relief on his Fed. R. Civ. P. 59(e) motion to alter or amend its order adopting the recommendation of the magistrate dismissing action. judge, his 42 granting U.S.C.A. judgment 1983 to Defendants, civil and (West 2007) rights We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. In officer thirty or days civil agency after cases is the not in a which party, of the the United States are or its parties accorded final entry the district court's judgment or order to file a notice of appeal. P. 4(a)(1)(A). See Fed. R. App. The district court may extend the time to file a notice of appeal if a party moves for an extension within thirty days after expiration of the original appeal period and the party has shown excusable neglect or good cause warranting an extension. See Fed. R. App. P. 4(a)(5)(A); Washington v. Bumgarner, 882 F.2d 899, 900-01 (4th Cir. 1989). A bare notice of appeal does not constitute a motion for an extension of time, however, if "no request for additional time is manifest." v. Hutto, 722 F.2d 1167, 1168-69 (4th Cir. 1983) (en banc). time period within which to file a notice v. of Dir., appeal Dep't States Shah The is of v. "mandatory Corr., 434 and jurisdictional." 257, 264 (1978) 2 Browder (quoting U.S. United Robinson, 361 U.S. 220, 229 (1960)); see Bowles v. Russell, 551 U.S. 205, 127 S. Ct. 2360, 2366 (2007) ("Today we make clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement."). The district court's order denying Okera's Rule 59(e) motion was entered on the docket on January 26, 2009. Okera had He did until February 25, 2009 to file his notice of appeal. not do so until February 26, 2009, * one day late. Okera did not move for an extension of time, nor did his notice of appeal include a request for additional time. Because Okera failed to file a timely notice of appeal or to obtain an extension or reopening dispense of with the appeal period, we dismiss the the facts appeal. and We legal oral argument because contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 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. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266 (1988). * 3

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