Miller v. Ramsey

Filed: December 26, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-6759
(CA-93-801-3)

Cathy Miller, etc.,

Plaintiff - Appellant,

versus

Roscoe Ramsey, Jr., MD,

Defendant - Appellee.

O R D E R

The Court amends its opinion filed December 18, 1996, as

follows:
On page 2, section 1 -- counsel for appellee is corrected to

read "John B. Russell, SANDS, ANDERSON, MARKS & MILLER, Richmond,

Virginia, for Appellee."

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
 UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 95-6759

CATHY MILLER, Personal Representative for the
Estate of David L. Allison, deceased,

Plaintiffs - Appellants,

versus

ROSCOE RAMSEY, JR., MD,

Defendant - Appellee,

and

E. W. MURRAY, Director, Department of Cor-
rections; E. B. WRIGHT, Chief Warden; P. A.
TERRANGI, Deputy Warden,

Defendants.

Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. David G. Lowe, Magistrate Judge.
(CA-93-801-3)

Submitted: December 12, 1996 Decided: December 18, 1996

Before MURNAGHAN, NIEMEYER, and LUTTIG, Circuit Judges.

Dismissed by unpublished per curiam opinion.

2
Cathy Miller, Appellant Pro Se. John B. Russell, SANDS, ANDERSON,
MARKS & MILLER, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

3
PER CURIAM:

Appellant filed an untimely notice of appeal. We dismiss the

appeal for lack of jurisdiction. The time periods for filing

notices of appeal are governed by Fed. R. App. P. 4. These periods
are "mandatory and jurisdictional." Browder v. Director, Dep't of
Corrections, 434 U.S. 257, 264 (1978) (quoting United States v.

Robinson, 361 U.S. 220, 229 (1960)). Parties to civil actions have

thirty days within which to file in the district court notices of

appeal from judgments or final orders. Fed. R. App. P. 4(a)(1). The

only exceptions to the appeal period are when the district court
extends the time to appeal under Fed. R. App. P. 4(a)(5) or reopens

the appeal period under Fed. R. App. P. 4(a)(6).

The district court entered its order on April 12, 1995; Appel-
lant's notice of appeal was filed on May 18, 1995. Appellant's

failure to file a timely notice of appeal* or to obtain either an

extension or a reopening of the appeal period leaves this court

without jurisdiction to consider the merits of Appellant's appeal.

We therefore 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 deci-

sional process.

DISMISSED

*
The magistrate judge found that Appellant submitted the
notice of appeal to prison authorities on May 16, 1995. See Houston
v. Lack, 487 U.S. 266 (1988). All parties consented to the juris-
diction of the magistrate judge pursuant to 28 U.S.C. § 636(c)
(1994).

4