Ware v. Williams

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-7505

JOHNNY L. WARE,

Plaintiff - Appellant,

versus

T. WILLIAMS; J. L. PACE; M. E. JUSTICE; J. M.
HARMON; A. H. SKARDON; G. L. GILLARD;
GREENVILLE POLICE DEPARTMENT,

Defendants - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort. C. Weston Houck, Senior District
Judge. (CA-02-827)

Submitted: January 27, 2005 Decided: February 3, 2005

Before LUTTIG and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Johnny L. Ware, Appellant Pro Se. Ronald Keith Wray, II, GALLIVAN,
WHITE & BOYD, P.A., Greenville, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Johnny L. Ware seeks to appeal the district court’s order

granting summary judgment for defendants in a 42 U.S.C. § 1983

(2000) action. We dismiss the appeal for lack of jurisdiction

because the notice of appeal was not timely filed.

Parties are accorded thirty 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). This appeal period is “mandatory

and jurisdictional.” Browder v. Dir., 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 judgment was entered on the docket

on March 1, 2004. The notice of appeal was filed on September 7,

2004.* Because Ware failed to file a timely notice of appeal or to

obtain an extension or reopening of the appeal period, we dismiss

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

*
Because Ware was in prison at the time he filed his notice of
appeal, we assume that the date appearing on the notice of appeal
is the earliest date on which it could have been properly delivered
to prison officials for mailing to the court. See Fed. R. App. P.
4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).

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