Steven Barnes v. E. Quattlebaum et al

Filing 920100525

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-8101 STEVEN LEWIS BARNES, Plaintiff - Appellant, v. E. QUATTLEBAUM, Sergeant, individually and official capacity; MAJOR JACKSON, individually and official capacity; SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Florence. Margaret B. Seymour, District Judge. (4:08-cv-02197-MBS) Submitted: May 22, 2010 Decided: May 25, 2010

Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Steven Lewis Barnes, Appellant Pro Se. Andrew Lindemann, DAVIDSON, MORRISON & LINDEMANN, PA, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Steven court's order Lewis Barnes the seeks to appeal of the the district

adopting

recommendation

magistrate

judge and dismissing Barnes' 42 U.S.C. § 1983 (2006) complaint without remedies. prejudice We for failure the appeal to for exhaust lack administrative of jurisdiction

dismiss

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). is "mandatory and jurisdictional." Corr., 434 U.S. 257, 264 (1978) This appeal period

Browder v. Dir., Dep't of (quoting United States v.

Robinson, 361 U.S. 220, 229 (1960)). The district court's order was entered on the docket on September 29, 2009. The notice of appeal was filed on

October 30, 2009.*

Because Barnes failed to file a timely notice

of appeal or to obtain an extension or reopening of the appeal period, we grant the Appellees' motion to dismiss the appeal. 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).
*

2

We

dispense

with

oral

argument

because

the

facts

and

legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED

3