Ronald Mayberry v. Nurse Susan

Filing 920090602

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6476

RONALD MAYBERRY, Plaintiff - Appellant, v. NURSE SUSAN, Defendant ­ Appellee, and WASHINGTON TERRY, COUNTY CORRECTIONAL JAIL; CORRECTIONAL OFFICER

Defendants.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:07-ct-03106-H)

Submitted:

May 7, 2009

Decided:

June 2, 2009

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.

Remanded by unpublished per curiam opinion.

Ronald Mayberry, Appellant Pro Se. Walter Gregory Merritt, Jay C. Salsman, HARRIS, CREECH, WARD & BLACKERBY, New Bern, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Ronald Mayberry seeks to appeal the district court's order entering summary judgment against him. Susan Simmons,

referred to by Mayberry as "Nurse Susan," has moved to dismiss the appeal as untimely. Pursuant to Federal Rule of Appellate Procedure

4(a)(1), a notice of appeal in a civil case must be filed with the district court within thirty days after judgment is entered. "[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement." Bowles v. Russell, 551 U.S. 205, Therefore, the appeal must Washington v. The district

___, 127 S. Ct. 2360, 2366 (2007).

be dismissed if the notice of appeal is untimely. Bumgarner, 882 F.2d 899, 900 (4th Cir. 1989).

court may extend the filing time if "a party so moves no later than 30 days after the time prescribed by . . . Rule 4(a)

expires" and the party shows excusable neglect or good cause. Fed. R. App. P. 4(a)(5)(A)(i)-(ii). The district court granted Simmons's motion for

summary judgment on February 9, 2009. thirty appeal. days, or until March 11, 2009,

Therefore, Mayberry had to file a notice of

Mayberry filed his notice of appeal, at the earliest,

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on March 12, 2009, thirty-one days after judgment was entered. * Mayberry did not move in the district court for an extension of the filing time. However, Mayberry's response to Simmons's

motion to dismiss, filed in this court within the thirty-day excusable neglect period, requested that his appeal not be

dismissed because he cannot afford an attorney and is disabled. We construe Mayberry's response to Simmons's motion to dismiss as a timely request for an extension of the thirty-day appeal period. Therefore, we remand this case to the district

court for the limited purpose of enabling the court to determine whether Mayberry an has shown of excusable time to neglect or The good cause as

warranting

extension

appeal.

record,

supplemented, will then be returned to this court for further consideration. that return. REMANDED We defer ruling on the motion to dismiss pending

For purposes of this appeal, we assume that the date appearing on the notice of appeal is the earliest date it could have been delivered to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988). 4

*