Brian McKenzie v. Gary Maynard

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 11-6849


BRIAN E. MCKENZIE,

                Plaintiff - Appellant,

          v.

GARY D. MAYNARD,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:11-cv-00683-WDQ)


Submitted:   November 30, 2011            Decided:   December 19, 2011


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Brian E. McKenzie, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Brian E. McKenzie seeks to appeal the district court’s

order dismissing without prejudice his action construed as a

hybrid 28 U.S.C.A. § 2241 (West 2006 & Supp. 2011) petition and

42 U.S.C. § 1983 (2006) 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).                “[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 March 25, 2011.       The notice of appeal was filed, at the

earliest, on June 6, 2011. *        Because McKenzie failed to file a

timely notice of appeal or to obtain an extension or reopening


      *
       A pro se prisoner’s notice of appeal is considered filed
at the moment it is delivered to prison authorities for mailing
to the court.   Houston v. Lack, 487 U.S. 266, 276 (1988).   We
assume that McKenzie’s notice of appeal was filed, at the
earliest, on June 6, 2011, the date he put on a letter
accompanying his notice of appeal. The envelope containing the
notice of appeal and the letter also is dated June 6, 2011, and
bears the notation “Outgoing Inmate Mail.”



                                     2
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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