UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6976
GARY L. WISE,
Plaintiff - Appellant,
versus
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:07-cv-00596-HFF)
Submitted: October 1, 2007 Decided: November 5, 2007
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gary L. Wise, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary L. Wise seeks to appeal the district court’s orders
accepting the magistrate judge’s report and recommendation to
dismiss his request for mandamus relief, and thereafter, the
district court’s denial of his request for discovery. After the
district court dismissed Wise's petition, Wise filed a Motion for
Discovery. The court denied the Motion for Discovery because the
time to appeal the court’s judgment had expired. However, the
court notified Wise that he had thirty days to appeal the denial of
Wise’s Motion for Discovery. Wise thereafter filed a pleading that
the district court construed as a notice of appeal. To the extent
Wise seeks review of the order dismissing his petition, we dismiss
the appeal for lack of jurisdiction because Wise did not timely
appeal. To the extent Wise’s filing can be construed as a notice
of appeal from the order denying discovery, it failed to comply
with Fed. R. App. P. 3. As a consequence, Wise fails to invoke the
jurisdiction of this court.
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.
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257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220,
229 (1960)).
The district court’s order dismissing Wise’s petition was
entered on the docket on May 2, 2007. Because Wise failed to file
a timely notice of appeal from that order, we lack jurisdiction to
review the court’s judgment. Moreover, to the extent Wise’s filing
was construed as a notice of appeal from the order denying his
Motion for Discovery, it does not meet the requirements of Fed. R.
App. P. 3. Specifically, Wise’s pleading fails to designate the
order being appealed and fails to name the court to which the
appeal is taken.* Accordingly, we deny Wise’s motion to proceed in
forma pauperis, and 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
*
Even considering the merits of Wise’s appeal from the denial
of his Motion for Discovery, we would have no difficulty concluding
that the district court acted properly in denying a discovery
request filed in a case that had been dismissed over six weeks
previously.
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