UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6106
STACY W. HOWARD,
Plaintiff – Appellant,
v.
DIRECTOR JON E. OZMINT, of S.C. Department of Corrections
also known as John E. Ozmint; WARDEN WILLIE EAGLETON; AARON
JOYNER, Major; CAPTAIN KENNETH GREEN; S. SKIPPER, IGC of
the Evans Correctional Institution; T. WOOLBRIGHT; S.
MOSES; C. FOX; T. SIMMONS; MICHAEL J. STOBBE, Inmate
Records; JIMMY EDGE, officer; DAVID BRAYBOY, officer,
Defendants - Appellees.
No. 11-6459
STACY W. HOWARD,
Plaintiff – Appellant,
v.
JON OZMINT, of S.C. Department of Corrections also known as
John E. Ozmint; WARDEN WILLIE EAGLETON; AARON JOYNER,
Major; CAPTAIN KENNETH GREEN; S. SKIPPER, IGC of the Evans
Correctional Institution; T. WOOLBRIGHT; S. MOSES; C. FOX;
T. SIMMONS; MICHAEL J. STOBBE, Inmate Records; JIMMY EDGE,
officer; DAVID BRAYBOY, officer,
Defendants - Appellees.
Appeals from the United States District Court for the District
of South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:08-cv-03171-GRA)
Submitted: July 7, 2011 Decided: September 19, 2011
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
No. 10-6106, dismissed, No. 11-6459, affirmed by unpublished per
curiam opinion.
Stacy W. Howard, Appellant Pro Se. Leigh Powers Boan, William
Walter Doar, Jr., MCNAIR LAW FIRM, PA, Pawleys Island, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In No. 10-6106, Stacy W. Howard appeals from the
district court’s orders granting summary judgment to Defendants
in his 42 U.S.C. § 1983 (2006) suit and denying various
preliminary motions. We previously remanded the case to the
district court for a factual finding on the timeliness of
Howard’s notice of appeal, which was due on or before January 8,
2010, and was filed in the district court on January 14. On
remand, the district court found that Howard’s notice of appeal
was given to prison authorities, at the earliest, on January 12
and was, thus, untimely. In No. 11-6459, Howard appeals from
the district court’s ruling on remand.
An appellate court cannot disregard a district court’s
factual findings absent clear error. A finding is “clearly
erroneous” when the reviewing court “is left with the definite
and firm conviction that a mistake has been committed.” United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
While Howard alleges that the prison mailroom does not follow
protocol and holds mail before stamping or sending it, he
presents no evidence aside from his own allegations. After a
review of the evidence before the district court, we find that
the district court’s factual ruling on the date of filing was
not clearly erroneous. As such, the district court correctly
concluded that Howard’s appeal was untimely. Accordingly, we
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affirm the district court’s order in No. 11-6459 finding that
Howard’s notice of appeal was untimely filed.
Faced with this ruling, Howard contends that, when he
filed his (untimely) notice of appeal, he also amended his
January 29, 2009, notice of appeal from the denial of his motion
for a preliminary injunction. 1 He contends that this amended
notice of appeal was sufficient to permit consideration of the
final order in the case, as well as various interlocutory orders
entered both before and after his January 29, 2009, notice of
appeal. He argues that there is no time limit on amending
notices of appeal, so even though his notice (and amended
notice) were untimely filed as to the final order in his case,
the amended notice of appeal was sufficient to confer
jurisdiction.
Howard’s January 29, 2009, notice of appeal timely
appealed the district court’s order denying his motion for a
preliminary injunction. That order was an appealable,
interlocutory order; the appeal was considered on the merits;
and the appeal was decided on September 30, 2010. Howard’s
attempt to transform that notice of appeal into an appeal from
later-filed orders is ineffectual. A premature notice of
1
Howard did file an “Amended Notice of Appeal” with his
January 14, 2010 notice of appeal, listing numerous preliminary
orders he sought to appeal.
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appeal, even if rendered valid by the entry of an final order,
can only secure review of specific orders decided and appealed
from at the time the premature notice was filed. Any subsequent
orders must be appealed from in accordance the with Rules of
Appellate Procedure. See Nolan v. U.S. Dep’t of Justice, 973
F.2d 843, 846 (10th Cir. 1992). Moreover, regarding the earlier
orders, a notice of appeal must specify the orders being
appealed. Fed. R. App. P. 3(c)(1)(B).
Howard’s July 29, 2009, notice of appeal specified
that it was appealing orders entered on June 3 and July 13,
2009; his amended notice of appeal (filed on Jan. 14, 2010) adds
many other orders entered before and after these dates. The
earlier orders should have been specified in Howard’s July 29,
2009 notice of appeal, 2 and the later orders needed to be
separately appealed. Accordingly, we conclude that Howard’s
amended notice of appeal was of no effect and was merely an
untimely attempt to appeal.
2
However, even if Howard had included these earlier orders
in his first notice of appeal, most of the orders identified
would have been interlocutory. For instance, in his amended
notice of appeal, Howard attempts to appeal a January 21, 2009,
order of the district court denying his discovery motion. This
order was unappealable until entry of a final order, and any
premature notice of appeal would have been ineffectual. See In
re Bryson, 406 F.3d 284, 288 n.2 (4th Cir. 2005).
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The appeal period in a civil case is “mandatory and
jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257,
264 (1978) (internal quotation marks and citation omitted); see
also Bowles v. Russell, 551 U.S. 205, 212 (2007) (making clear
that timely filing of a notice of appeal in a civil case is a
jurisdictional requirement). As such, we dismiss No. 10-6106 as
untimely filed and affirm the district court’s findings in No.
11-6459. We deny Howard’s motions to file a formal brief and
for appointment of counsel. 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.
No. 10-6106: DISMISSED;
No. 11-6459: AFFIRMED
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