Robert Lurch v. Fayetteville Police Department

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cv-00394-BO. Copies to all parties and the district court. [999801391]. Mailed to: Robert Lurch. [16-1038]

Appeal: 16-1038

Doc: 9

Filed: 04/22/2016

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1038

ROBERT DEREK LURCH,
Plaintiff - Appellant,
v.
FAYETTEVILLE POLICE DEPARTMENT; THE PANTRY, INC.,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:13-cv-00394-BO)

Submitted:

April 19, 2016

Decided:

April 22, 2016

Before AGEE, DIAZ, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Robert Derek Lurch, Appellant Pro Se.
Christopher M. Hinnant,
CRANFILL, SUMNER & HARTZOG, LLP, Wilmington, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 16-1038

Doc: 9

Filed: 04/22/2016

Pg: 2 of 4

PER CURIAM:
Robert Derek Lurch seeks to appeal the district court’s
order adopting the recommendation of the magistrate judge and
dismissing his civil action, its order denying his motion to
reopen, and its order denying his motion for reconsideration.
We

dismiss

the

appeal

for

lack

of

jurisdiction

because

the

notice of appeal was not timely filed.
Parties
district

are

court’s

accorded
final

30

days

judgment

or

after
order

the
to

entry

note

of

an

the

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).

2

The time requirements of

Appeal: 16-1038

Doc: 9

Filed: 04/22/2016

Pg: 3 of 4

Rule 4(a) are mandatory and jurisdictional.

Bowles v. Russell,

551 U.S. 205, 208-14 (2007).
The district court’s orders were entered on the docket on
August

1,

2013,

respectively.
2016. *

September

23,

2015,

and

November

6,

2015,

The notice of appeal was filed on January 6,

In the notice, Lurch appears to claim that he was not

contacted

regarding

the

dismissal

of

his

action

in

2013.

However, the 180-day reopening period expired well before Lurch
filed his notice of appeal.

Thus, Lurch is not eligible for

reopening of the appeal period with respect to the August 1,
2013, order.

See 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).

Additionally, there is no

indication from the record that Lurch did not receive notice of
the district court’s September and November 2015 denial orders
within 21 days of their entry.

Lurch further did not move for

an extension of the appeal periods.
Accordingly, because Lurch failed to file a timely notice
of appeal or to obtain an extension of the appeal periods and is

*

It appears Lurch was incarcerated when he filed his notice
of appeal. Accordingly, for purposes of this appeal, we assume
that the postmark date appearing on the envelope containing the
undated notice of appeal is the earliest date it could have been
properly delivered to prison officials for mailing to the court.
Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266, 276 (1988).

3

Appeal: 16-1038

Doc: 9

Filed: 04/22/2016

Pg: 4 of 4

not eligible for a reopening of the appeal periods, we dismiss
the appeal.

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before

this

court

and

argument

would

not

aid

the

decisional

process.

DISMISSED

4