Stacy Howard v. Jon Ozmint

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file formal brief [998356944-2] in 10-6106; denying Motion to appoint/assign counsel [998356944-3] in 10-6106 Originating case number: 6:08-cv-03171-GRA Copies to all parties and the district court/agency. [998680336]. Mailed to: Stacy Howard. [10-6106, 11-6459]

Appeal: 10-6106

Document: 42

Date Filed: 09/19/2011

Page: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-6106

STACY W. HOWARD,
Plaintiff – Appellant,
v.
DIRECTOR JON E. OZMINT, of S.C. Department of Corrections
also known as John E. Ozmint; WARDEN WILLIE EAGLETON; AARON
JOYNER, Major; CAPTAIN KENNETH GREEN; S. SKIPPER, IGC of
the Evans Correctional Institution; T. WOOLBRIGHT; S.
MOSES; C. FOX; T. SIMMONS; MICHAEL J. STOBBE, Inmate
Records; JIMMY EDGE, officer; DAVID BRAYBOY, officer,
Defendants - Appellees.

No. 11-6459

STACY W. HOWARD,
Plaintiff – Appellant,
v.
JON OZMINT, of S.C. Department of Corrections also known as
John E. Ozmint; WARDEN WILLIE EAGLETON; AARON JOYNER,
Major; CAPTAIN KENNETH GREEN; S. SKIPPER, IGC of the Evans
Correctional Institution; T. WOOLBRIGHT; S. MOSES; C. FOX;
T. SIMMONS; MICHAEL J. STOBBE, Inmate Records; JIMMY EDGE,
officer; DAVID BRAYBOY, officer,
Defendants - Appellees.

Appeal: 10-6106

Document: 42

Date Filed: 09/19/2011

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Appeals from the United States District Court for the District
of South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:08-cv-03171-GRA)

Submitted:

July 7, 2011

Decided:

September 19, 2011

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

No. 10-6106, dismissed, No. 11-6459, affirmed by unpublished per
curiam opinion.

Stacy W. Howard, Appellant Pro Se. Leigh Powers Boan, William
Walter Doar, Jr., MCNAIR LAW FIRM, PA, Pawleys Island, South
Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 09/19/2011

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PER CURIAM:
In

No.

10-6106,

Stacy

W.

Howard

appeals

from

the

district court’s orders granting summary judgment to Defendants
in

his

42

U.S.C.

§ 1983

preliminary motions.
district

court

for

(2006)

suit

and

denying

various

We previously remanded the case to the
a

factual

finding

on

the

timeliness

of

Howard’s notice of appeal, which was due on or before January 8,
2010, and was filed in the district court on January 14.

On

remand, the district court found that Howard’s notice of appeal
was given to prison authorities, at the earliest, on January 12
and was, thus, untimely.

In No. 11-6459, Howard appeals from

the district court’s ruling on remand.
An appellate court cannot disregard a district court’s
factual

findings

absent

clear

error.

A

finding

is

“clearly

erroneous” when the reviewing court “is left with the definite
and firm conviction that a mistake has been committed.”

United

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
While Howard alleges that the prison mailroom does not follow
protocol

and

holds

mail

before

stamping

or

sending

presents no evidence aside from his own allegations.

it,

he

After a

review of the evidence before the district court, we find that
the district court’s factual ruling on the date of filing was
not clearly erroneous.

As such, the district court correctly

concluded that Howard’s appeal was untimely.
3

Accordingly, we

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affirm the district court’s order in No. 11-6459 finding that
Howard’s notice of appeal was untimely filed.
Faced with this ruling, Howard contends that, when he
filed

his

(untimely)

notice

of

appeal,

he

also

amended

his

January 29, 2009, notice of appeal from the denial of his motion
for a preliminary injunction. 1

He contends that this amended

notice of appeal was sufficient to permit consideration of the
final order in the case, as well as various interlocutory orders
entered both before and after his January 29, 2009, notice of
appeal.
notices

He argues that there is no time limit on amending
of

appeal,

so

even

though

his

notice

(and

amended

notice) were untimely filed as to the final order in his case,
the

amended

notice

of

appeal

was

sufficient

to

confer

jurisdiction.
Howard’s

January

29,

2009,

notice

of

appeal

timely

appealed the district court’s order denying his motion for a
preliminary

injunction.

That

order

was

an

appealable,

interlocutory order; the appeal was considered on the merits;
and the appeal was decided on September 30, 2010.

Howard’s

attempt to transform that notice of appeal into an appeal from
later-filed

orders

is

ineffectual.

1

A

premature

notice

of

Howard did file an “Amended Notice of Appeal” with his
January 14, 2010 notice of appeal, listing numerous preliminary
orders he sought to appeal.

4

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appeal, even if rendered valid by the entry of an final order,
can only secure review of specific orders decided and appealed
from at the time the premature notice was filed.

Any subsequent

orders must be appealed from in accordance the with Rules of
Appellate Procedure.

See Nolan v. U.S. Dep’t of Justice, 973

F.2d 843, 846 (10th Cir. 1992).
orders,

a

appealed.

notice

of

appeal

Moreover, regarding the earlier
must

specify

the

orders

being

Fed. R. App. P. 3(c)(1)(B).
Howard’s

July

29,

2009,

notice

of

appeal

specified

that it was appealing orders entered on June 3 and July 13,
2009; his amended notice of appeal (filed on Jan. 14, 2010) adds
many other orders entered before and after these dates.

The

earlier orders should have been specified in Howard’s July 29,
2009

notice

separately

of

appeal, 2

appealed.

and

the

Accordingly,

later
we

orders

conclude

needed
that

to

be

Howard’s

amended notice of appeal was of no effect and was merely an
untimely attempt to appeal.

2

However, even if Howard had included these earlier orders
in his first notice of appeal, most of the orders identified
would have been interlocutory.
For instance, in his amended
notice of appeal, Howard attempts to appeal a January 21, 2009,
order of the district court denying his discovery motion. This
order was unappealable until entry of a final order, and any
premature notice of appeal would have been ineffectual. See In
re Bryson, 406 F.3d 284, 288 n.2 (4th Cir. 2005).

5

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The appeal period in a civil case is “mandatory and
jurisdictional.”

Browder v. Dir., Dep’t of Corr., 434 U.S. 257,

264 (1978) (internal quotation marks and citation omitted); see
also Bowles v. Russell, 551 U.S. 205, 212 (2007) (making clear
that timely filing of a notice of appeal in a civil case is a
jurisdictional requirement).

As such, we dismiss No. 10-6106 as

untimely filed and affirm the district court’s findings in No.
11-6459.
for

We deny Howard’s motions to file a formal brief and

appointment

of

counsel.

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.

No. 10-6106: DISMISSED;
No. 11-6459: AFFIRMED

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