Langston Oliver, Plaintiff-appellant, v. Lieutenant Hendren; Officer Macemore; Officer Williams,defendants-appellees, 974 F.2d 1331 (4th Cir. 1992)

OPINION

Langston Oliver, a North Carolina inmate, appealed the district court's dismissal of his 42 U.S.C. § 1983 action, but he noted the appeal outside the thirty-day appeal period established by Fed. R. App. P. 4(a). This Court remanded for the district court to consider Oliver's filing of a motion for extension of time within which to file a notice of appeal, pursuant to Fed. R. App. P. 4(a) (5). Oliver v. Hendren, No. 90-6664 (4th Cir. June 19, 1991). On remand, the district court found that Oliver did not demonstrate good cause or excusable neglect for untimely filing his notice of appeal. We agree and, therefore, dismiss this appeal for lack of jurisdiction.

The time periods established by Fed. R. App. P. 4 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)). A finding of excusable neglect is reviewed for abuse of discretion. United States v. Breit, 754 F.2d 526, 528 (4th Cir. 1985). We find the district court did not abuse its discretion when, on remand from this Court, it provided Oliver with additional time to explain his delay in noting an appeal and then found no good cause or excusable neglect. Appellant's failure to note a timely appeal or obtain an extension of the appeal period deprives this Court of jurisdiction to consider this case. We, therefore, dismiss this 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