Darby v. Sheriff

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 96-6055

JAMES PETER DARBY,

Plaintiff - Appellant,

versus

SHERIFF, Cabarrus County, North Carolina, in
his official capacity and as an individual;
CABARRUS COUNTY; UNKNOWN UNNAMED, in their
official capacities and as individuals,

Defendants - Appellees.

No. 96-6508

JAMES PETER DARBY,

Plaintiff - Appellant,

versus

SHERIFF, Cabarrus County, North Carolina, in
his official capacity and as an individual;
CABARRUS COUNTY; UNKNOWN UNNAMED, in their
official capacities and as individuals,

Defendants - Appellees.
Appeals from the United States District Court for the Middle Dis-
trict of North Carolina, at Salisbury. N. Carlton Tilley, Jr.,
District Judge. (CA-94-260-4)

Submitted: May 21, 1996 Decided: June 18, 1996

Before HALL, ERVIN, and MICHAEL, Circuit Judges.

No. 96-6055 dismissed and No. 96-6508 affirmed by unpublished per
curiam opinion.

James Peter Darby, Appellant Pro Se. Grady Michael Barnhill,
WOMBLE, CARLYLE, SANDRIDGE & RICE, Charlotte, North Carolina, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:

On January 11, 1996, James Darby filed an appeal in case

number 96-6055 from a district court order denying relief on his

complaint filed under 42 U.S.C. § 1983 (1988). Because the district

court entered its order on December 11, 1996, the thirty-day appeal

period established by Fed. R. App. P. 4(a)(1) expired on January
10, 1996. Hence, Darby's appeal was filed one day late. The dis-

trict court denied Darby's motion for an extension of the appeal

period pursuant to Fed. R. App. P. 4(a)(5), and Darby appeals from

the order denying that motion in appeal number 96-6508.
The time periods established by Fed. R. App. P. 4 are "manda-

tory and jurisdictional." Browder v. Director, Dep't of Correc-
tions, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson,

361 U.S. 220, 229 (1960). Moreover, in denying Darby's request for

an extension of time, the district court properly determined that

the provisions of the Federal Rules of Civil Procedure relating to
extensions of time for service of documents, such as Rule 6(e) and

Rule 5(b), have no applicability to the computation of time for
filing under Appellate Rule 4. The court also properly found that

Darby's reliance on the postal processes to timely deliver the

notice of appeal, even if reasonable, constituted insufficient

grounds to establish "excusable neglect" under Appellate Rule

4(a)(5). See Thompson v. E. I. Dupont de Nemours & Co., Inc., 76

F.3d 530, 534 (4th Cir. 1996).

Accordingly, the district court's order in case number 96-6508

denying the motion for an extension of time is affirmed. Because we

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lack jurisdiction to hear the merits of Darby's underlying appeal,

we grant the Appellee's motion to dismiss the appeal in case number

96-6055. 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. 96-6055 - DISMISSED
No. 96-6508 - AFFIRMED

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