Steven Tarpley v. Robert Friend

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cv-01240-BEL Copies to all parties and the district court/agency. [998562772]. Mailed to: Glenn William Bell and Steven E. Tarpley. [10-6155]

Case: 10-6155

Document: 28

Date Filed: 04/07/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-6155

STEVEN E. TARPLEY,
Plaintiff - Appellant,
v.
LIEUTENANT ROBERT FRIEND, Sergeant; OFFICER LINDBURG, are
sued in both their individual and official capacities,
Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Benson Everett Legg, District Judge.
(1:08-cv-01240-BEL)

Submitted:

March 23, 2011

Decided:

April 7, 2011

Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.

Dismissed by unpublished per curiam opinion.

Steven E. Tarpley, Appellant Pro Se. Glenn William Bell, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-6155

Document: 28

Date Filed: 04/07/2011

Page: 2

PER CURIAM:
Steven E. Tarpley seeks to appeal the district court’s
orders denying relief on his 42 U.S.C. § 1983 (2006) complaint
and subsequent Fed. R. Civ. P. 59(e) motion to alter or amend
the judgment.

We dismiss the appeal for lack of jurisdiction

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).

“[T]he timely

filing of a notice of appeal in a civil case is a jurisdictional
requirement.”
The

Bowles v. Russell, 551 U.S. 205, 214 (2007).
district

court’s

order

denying

the

Rule

59(e)

motion was entered on the docket on December 17, 2009, and the
thirty-day appeal period expired on January 19, 2010. *

Because

Tarpley’s notice of appeal was undated, and the record did not
otherwise reveal when he gave the notice to prison officials for
mailing,
additional

we

remanded
fact-finding

this
on

case
the

*

to

the

question

district
of

court

whether

for

Tarpley

The thirtieth day was Saturday, January 16, 2010.
However, taking into account the weekend and the Martin Luther
King, Jr., holiday, Tarpley had until Tuesday, January 19, 2010,
in which to file a timely notice of appeal. See Fed. R. App. P.
26(a)(1) (explaining effect of weekend days and legal holidays).

2

Case: 10-6155

Document: 28

Date Filed: 04/07/2011

timely filed his notice of appeal.

Page: 3

See Tarpley v. Friend, 390

F. App’x 235 (4th Cir. 2010) (No. 10-6155).

The district court

determined that, in the absence of a response from Tarpley, the
postmark date of January 21, 2010, provided the best evidence of
when Tarpley handed his notice of appeal to prison officials for
mailing to the court.
After reviewing the record, as supplemented, we find
no

basis

to

disturb

the

district

court’s

finding

of

fact.

Accordingly, we conclude that the notice of appeal was untimely
filed on January 21, 2010.

Because Tarpley failed to file a

timely notice of appeal or to obtain an extension or reopening
of the appeal period, we dismiss the appeal.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
the

court

are
and

argument would not aid the decisional process.
DISMISSED

3