UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2053
RANDY LYNN JOHNSON,
Plaintiff - Appellant,
v.
WILLIAM BERTRAND,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:09-CV-00481-D)
Submitted: February 28, 2011 Decided: March 4, 2011
Before TRAXLER, Chief Judge, and KING and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Randy Lynn Johnson, Appellant Pro Se. Benjamin E. Thompson,
III, BROUGHTON, WILKINS, SMITH, SUGGS & THOMPSON, PLLC, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy Lynn Johnson seeks to appeal the district
court’s order dismissing his civil action against William
Bertrand for lack of subject matter jurisdiction. 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). “[T]he timely
filing of a notice of appeal in a civil case is a jurisdictional
requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007).
The district court’s order was entered on the docket
on July 15, 2010. The notice of appeal was filed on or about
September 3, 2010. * Thus, the notice of appeal was filed outside
the thirty-day appeal period. Because Johnson failed to file a
*
Because Johnson is incarcerated, he is deemed to have
filed the notice of appeal the date he deposited it in the
prison mail system. Fed. R. App. P. 4(c)(1). However, the
notice of appeal does not contain a declaration or notarized
statement reflecting that date, as required by Federal Rule of
Appellate Procedure 4(c)(1), and the post-mark date is
illegible. In determining the filing date, we have afforded
Johnson the presumption that he tendered the notice of appeal on
September 3, 2010, five business days prior to the district
court’s September 13, 2010 receipt thereof.
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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
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