Jorge Gevara v. F. Hubbard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cv-00681-WO-LPA Copies to all parties and the district court/agency. [999720990]. Mailed to: Jorge Gevara. [15-7523]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7523

JORGE GEVARA,
Plaintiff - Appellant,
v.
F. B.
HUBBARD,
Superintendent;
CRUTCHFIELD,
Assist.
Superintendent of Programs; DEBRA DUNCAN, R.N. - Medical
Administrator;
C.
FIELDS,
Correctional
Officer;
DAVID
OSTORNE, Asst. Director Prisons; PAULA Y. SMITH, Medical
Director of Prisons; THEODIS BECK, Secretary of Prisons; D.
JONES MURPHY, Nurse; AMY S. MACKEY; PETER KEYSER; PERRITT,
Unit Manager; T. JONES, Asst. Unit Manager; P. BETHEA,
Correctional Officer; PURCEL, Correctional Officer; QUICK,
Sergeant; MILLER, Sergeant; ASHE HARRIS, Notary Public; BOYD
BENNETT,
Defendants - Appellees.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:09-cv-00681-WO-LPA)

Submitted:

December 15, 2015

Before GREGORY
Circuit Judge.

and

FLOYD,

Decided:

Circuit

Judges,

Dismissed by unpublished per curiam opinion.

December 18, 2015

and

DAVIS,

Senior

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Jorge Gevara, Appellant Pro Se.
Lisa Yvette Harper, Assistant
Attorney General, Fayetteville, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jorge Gevara seeks to appeal the district court’s judgment
dismissing his 42 U.S.C. § 1983 (2012) civil action.

We dismiss

the appeal for lack of jurisdiction because the notice of appeal
was not timely filed.
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).

“Lack of notice of

the entry does not affect the time for appeal or relieve-or
authorize the court to relieve-a party for failing to appeal
within the time allowed, except as allowed by Federal Rule of
Appellate Procedure (4)(a).”

Fed. R. Civ. P. 77(d)(2).

Rule 4(a)(6) of the Federal Rules of Appellate Procedure
permits the reopening of the appeal period if a party has not
received notice of the judgment or order within 21 days after
entry,

but

the

motion

requesting

such

relief

must

be

filed

within 180 days after entry of the judgment or 14 days after the
party received notice of the judgment or order, whichever is
earlier.

Fed. R. App. P. 4(a)(6).

The time requirements of

Rule 4(a) are mandatory and jurisdictional.
551 U.S. 205, 208-14 (2007).

3

Bowles v. Russell,

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The district court’s order was entered on the docket on
June 25, 2014.

Gevara delivered a notice of appeal to prison

officials for mailing on September 22, 2015.

See Fed. R. App.

P. 4(c); Houston v. Lack, 487 U.S. 266, 276 (1988).

In the

notice, Gevara claimed he “never received any judgment or notice
about any dismissal.”

However, the 180-day reopening period

expired well before Gevara filed his notice of appeal.
Gevara

is

not

eligible

for

reopening

of

the

appeal

Thus,
period.

Nunley v. City of Los Angeles, 52 F.3d 792, 794-95 (9th Cir.
1995); Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d 226, 228
(4th Cir. 1981).
Accordingly, because Gevara failed to file a timely notice
of appeal or to obtain an extension of the appeal period and is
not eligible for reopening of the appeal period, we dismiss the
appeal.
legal
before

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

DISMISSED

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