Andrew Drayton, Jr. v. State

Filing

OPINION/ORDER DIRECTING LIMITED REMAND filed by DGM, RBK and GSA [4CCA retains jurisdiction]. Originating case number: 0:14-cv-01548-RMG Copies to all parties and the district court/agency. Mailed to: Drayton. [999654311] [15-6471]

Appeal: 15-6471

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6471

ANDREW DRAYTON, JR.,
Plaintiff – Appellant,
v.
STATE, etc,
Defendant - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.
Richard M. Gergel, District
Judge. (0:14-cv-01548-RMG)

Submitted:

July 28, 2015

Decided:

September 4, 2015

Before MOTZ, KING, and AGEE, Circuit Judges.

Remanded by unpublished per curiam opinion.

Andrew Drayton, Jr., Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Andrew Drayton, Jr., seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing

his

42

U.S.C.

§ 1983

(2012)

complaint

without

prejudice.

We remand for consideration of whether reopening of

the appeal period is warranted.
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
July

3,

2014.

Drayton

September 25, 2014.

his

notice

of

appeal

on

Drayton’s notice of appeal is thus clearly

untimely.

However,

“motion

disclosure”

of

filed

on

September
in

which

8,
he

2014,
stated

Drayton
that

he

filed
had

a

not

received written notice of the court’s decision in the case.
Under Fed. R. App. P. 4(a)(6), the district court may reopen the
time to file an appeal if: (1) the moving party did not receive
notice of entry of judgment within 21 days after entry; (2) the
motion is filed within 180 days of entry of judgment or within

2

Appeal: 15-6471

14

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days

of

Filed: 09/04/2015

receiving

notice

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from

the

court,

whichever

is

earlier: and (3) no party would be prejudiced.
In the motion of disclosure, Drayton stated that he was
told the case was closed on July 3, 2014, but did not know who
had

prevailed

and

had

not

received

a

written

judgment.

Accordingly, we remand for the limited purpose of permitting the
district

court

to

determine

whether

Drayton’s

motion

of

disclosure should be construed as a motion to reopen the appeal
period, and if so, whether reopening is warranted.

The record,

as supplemented, will then be returned to this court for further
consideration.
REMANDED

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