UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6115
PAUL GRAHAM,
Plaintiff - Appellant,
versus
STATE OF MARYLAND DEPARTMENT OF CORRECTIONS,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:06-cv-01998-CCB)
Submitted: January 28, 2008 Decided: February 22, 2008
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Paul Graham, Appellant Pro Se. Karl Aram Pothier, Assistant
Attorney General, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul Graham seeks to appeal the district court’s order
dismissing his 42 U.S.C. § 1983 (2000) suit. We dismiss the appeal
for lack of jurisdiction because the notice of appeal was not
timely filed.
Parties in a civil action 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).
The district court’s order was entered on the docket on
November 30, 2006. Graham’s notice of appeal was dated January 6
and filed January 22, 2007. Because Graham’s notice of appeal
could be interpreted to allege that he had not received the
district court’s judgment, we previously remanded to the district
court for a determination of whether Graham was entitled to the
benefit of Rule 4(a)(6) to reopen the time to file an appeal. The
district court found that Graham timely received the judgment, and
the case has now been returned to this court.
We review the district court’s denial of a Rule 4(a)(6)
motion for abuse of discretion. Ogden v. San Juan County, 32 F.3d
452, 455 (10th Cir. 1994). The district court concluded that it
- 2 -
timely sent out the judgment, that Graham had received legal mail
during the relevant time period, and that the judgment was never
returned to the court. We find that the district court’s
conclusions were not an abuse of discretion. See James v.
Jacobson, 6 F.3d 233, 239 (4th Cir. 1993) (stating that abuse of
discretion may occur by failure to exercise discretion, failure to
take into account judicially recognized factors constraining
exercise of discretion, or erroneous factual or legal premises).
Accordingly, we dismiss the appeal as untimely. 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
- 3 -