UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6447
MICHAEL O. DEVAUGHN,
Plaintiff - Appellant,
versus
MARK C. MOORE, Assistant United States
Attorney; ISAAC JOHNSON, JR., Assistant United
States Attorney; PAUL RIVERS, United States
Marshall; DARNELL MCCALL, Chief of Anderson
City Detention Center,
Defendants - Appellees.
No. 04-7181
MICHAEL O. DEVAUGHN,
Plaintiff - Appellant,
versus
MARK C. MOORE, Assistant United States
Attorney; ISAAC JOHNSON, JR., Assistant United
States Attorney; PAUL RIVERS, United States
Marshall; DARNELL MCCALL, Chief of Anderson
City Detention Center,
Defendants - Appellees.
Appeals from the United States District Court for the District of
South Carolina, at Charleston. Margaret B. Seymour, District
Judge. (CA-02-883)
Submitted: November 4, 2004 Decided: November 9, 2004
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Dismissed in part, affirmed in part, by unpublished per curiam
opinion.
Michael O. DeVaughn, Appellant Pro Se. Barbara Murcier Bowens,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Michael O. DeVaughn seeks to appeal the district court’s
orders denying relief on his action alleging violations under 42
U.S.C. § 1983 (2000) and Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 319 (1989), and his motion to
reconsider. Regarding the district court’s order dismissing the
action, we dismiss the appeal for lack of jurisdiction because
DeVaughn’s notice of appeal was not timely filed.
Parties are accorded sixty days if the United States is
a party after entry of the district court’s final judgment or order
to note an appeal, see Fed. R. App. P. 4(a)(1)(B), 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).
This appeal period is “mandatory and jurisdictional.” Browder v.
Director, Dep’t of Corr., 434 U.S. 257, 264 (1978) (quoting United
States v. Robinson, 361 U.S. 220, 229 (1960)).
The district court’s order dismissing DeVaughn’s action
was entered on the docket on October 1, 2003. DeVaughn’s notice of
appeal was filed on February 24, 2004.* Because DeVaughn failed to
file a timely notice of appeal or to obtain an extension or
reopening of the appeal period, we dismiss this portion of the
appeal.
*
This date gives DeVaughn the benefit of Houston v. Lack, 487
U.S. 266 (1988).
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Regarding DeVaughn’s timely appeal of the district
court’s order denying his motion to reconsider under Fed. R. Civ.
P. 60(b), we do not find that the district court abused its
discretion in denying relief. CNF Constructors, Inc. v. Donohoe
Constr. Co., 57 F.3d 395, 401 (4th Cir. 1995) (providing standard
of review). Accordingly, we affirm this portion of the appeal. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED IN PART,
AFFIRMED IN PART
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