Brian Nesbitt v. Warden Tyger River

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to compel [999620755-2] in 14-7626; denying Motion for injunctive relief pending appeal and temporary restraining order(FRAP 8) [999628278-2] in 14-7626; denying Motion for injuntive relief and temporary restraining order [999623837-2] in 15-6814; denying Motion to appoint/assign counsel [999606798-2] in 14-7626 and 15-6814. Originating case number: 0:13-cv-02602-RMG Copies to all parties and the district court/agency. [999650503]. Mailed to: Nesbitt. [14-7626, 15-6814]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7626

BRIAN KEITH NESBITT,
Petitioner - Appellant,
v.
WARDEN TYGER RIVER CORRECTIONAL INSTITUTION,
Respondent - Appellee,
and
STATE OF SOUTH CAROLINA,
Respondent.

No. 15-6814

BRIAN KEITH NESBITT,
Petitioner - Appellant,
v.
WARDEN TYGER RIVER CORRECTIONAL INSTITUTION,
Respondent - Appellee,
and
STATE OF SOUTH CAROLINA,
Respondent.

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Appeals from the United States District Court for the District
of South Carolina, at Rock Hill. Richard Mark Gergel, District
Judge. (0:13-cv-02602-RMG)

Submitted:

August 24, 2015

Decided:

August 31, 2015

Before WILKINSON, KING, and DUNCAN, Circuit Judges.

14-7626, Dismissed; 15-6814, Affirmed by unpublished per curiam
opinion.

Brian Keith Nesbitt, Appellant Pro Se.
Donald John Zelenka,
Senior
Assistant
Attorney
General,
Kaycie
Smith
Timmons,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In these consolidated appeals, Brian Keith Nesbitt seeks to
challenge
judge’s

the

district

recommendation

court’s
and

order

adopting

dismissing

his

the

28

magistrate

U.S.C.

§

2254

(2012) petition (No. 14-7626), and the court’s order denying his
Fed. R. Civ. P. 59(e) motion for reconsideration of its order,
entered after a limited remand, finding that Nesbitt’s notice of
appeal
Warden,
2015).

was

not

Tyger
We

timely
River

dismiss

filed

Corr.
the

(No.

Inst.,

appeal

15-6814).
599

in

F.

No.

See

App’x
14-7626

68

Nesbitt
(4th

for

v.

Cir.

lack

of

jurisdiction because the notice of appeal was not timely filed,
and affirm the contested order in No. 15-6814.
Parties

are

accorded

30

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.”

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

The district court’s order was entered on the docket on
September 9, 2014.

The district court found on remand that the

notice of appeal was most likely filed on October 15, 2014.
Because Nesbitt failed to file a timely notice of appeal or to

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obtain

an

Filed: 08/31/2015

extension

or

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reopening

of

the

appeal

period,

we

dismiss the appeal in No. 14-7626.
In No. 15-6814, Nesbitt appeals the district court’s order
denying his Rule 59(e) motion.
find

no

reversible

error.

We have reviewed the record and
Accordingly,

reasons stated by the district court.

we

affirm

for

the

Nesbitt v. Warden Tyger

River Corr. Inst., 0:13-cv-02602-RMG (D.S.C. May 26, 2015).
Accordingly,
affirm

the

we

dismiss

district

court’s

the

appeal

order

in

in

No.

No.

14-7626

15-6814.

We

and
deny

Nesbitt’s motions in No. 14-7626 to compel discovery, to appoint
counsel,

and

for

a

preliminary

injunction

and

a

temporary

restraining order, and his motions in No. 15-6814 to appoint
counsel

and

for

a

restraining order.
facts

and

material

legal
before

preliminary

injunction

and

temporary

We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented
will

not

in

the

aid

the

decisional process.
No. 14-7626, DISMISSED;
No. 15-6814, AFFIRMED

4