Andre McSwain v. Laurene Job

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999348239-2] Originating case number: 1:13-cv-00890-CCE-JLW Copies to all parties and the district court/agency. [999444591]. Mailed to: McSwain. [14-1426]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1426

ANDRE J. MCSWAIN,
Plaintiff – Appellant,
v.
LAURENE POWELL JOBS; APPLE INC; GOOGLE INC.,
Defendants - Appellees.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cv-00890-CCE-JLW)

Submitted:

September 25, 2014

Decided:

September 29, 2014

Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed in part, dismissed in part by unpublished per curiam
opinion.

Andre J. McSwain, Appellant Pro Se. William Andrew Copenhaver,
Ronald R. Davis, James Aaron Dean, WOMBLE CARLYLE SANDRIDGE &
RICE, PLLC, Winston-Salem, North Carolina; Rodrick John Enns,
ENNS & ARCHER, LLP, Winston-Salem, North Carolina; Jacqueline
Elizabeth Young, PERKINS COIE LLP, San Francisco, California,
for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Andre
dismissing

his

McSwain

appeals

complaint

for

the

district

failure

to

court’s

state

a

order

claim

and

denying his self-styled motions to strike, its order denying his
motions

to

denying

his

district

alter

or

motion

judge

amend
for

and

for

sanctions,

recusal
to

assigned

of

case.

his

the

and

magistrate
For

the

its

order

judge

reasons

and
that

follow, we affirm in part and dismiss in part.
First, we conclude that we lack jurisdiction over the
district court’s underlying dismissal order, because McSwain’s
notice of appeal was not timely as to that order.
App. P. 4(a)(1)(A), (a)(5), (a)(6).
notice

of

appeal

requirement.”

in

Bowles

a
v.

See Fed. R.

“[T]he timely filing of a

civil

case

is

Russell,

551

U.S.

a

jurisdictional

205,

214

(2007).

McSwain’s motion for reconsideration, appropriately construed as
a Fed. R. Civ. P. 60(b) motion, see In re Burnley, 988 F.2d 1, 3
(4th Cir. 1992), was not effective to toll the appeal period
from the underlying judgment.

See Fed. R. App. P. 4(a)(4)(A).

Accordingly, we dismiss this portion of the appeal for lack of
jurisdiction.
Turning

to

the

denial

of

McSwain’s

post-judgment

motions, we limit appellate review to those issues raised in the
informal

brief.

4th

Cir.

R.

34(b).

We

conclude

that

the

district court did not abuse its discretion in determining that
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McSwain

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failed

to

make

the

relief or for recusal.

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requisite

showing

for

Rule

60(b)

See Cent. Tel. Co. of Va. v. Sprint

Commc’ns Co. of Va., 715 F.3d 501, 515 (4th Cir.) (standard of
review

for

recusal

decisions),

cert.

denied,

134

S.

Ct.

423

(2013); Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011) (en
banc)

(standard

Leventhal,

640

of

review

F.3d

for

567,

Rule

572-74

60(b)

(4th

motions);

Cir.

2011)

Belue

v.

(discussing

requirements for judicial recusal); Dowell v. State Farm Fire &
Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993) (describing
requirements

for

relief

under

Rule

60(b)).

Accordingly,

although we grant leave to proceed in forma pauperis, we affirm
the district court’s rulings in these orders.

We dispense with

oral

contentions

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

this

court

are
and

argument would not aid the decisional process.

AFFIRMED IN PART;
DISMISSED IN PART

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