William Shanklin v. Kenneth Seal, No. 11-6942 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6942 WILLIAM SHANKLIN, Plaintiff - Appellant, v. KENNETH RANDALL SEALS, Major, Police Officer, individually and in official capacity; STEVEN HATFIELD, Corporal, Detective, Police Officer, individually and in official capacity; TRACI BRYLEWSKI, Sergeant, Detective, Police Officer, individually and in official capacity; BRIAN SNYDER, Detective, Police Officer, individually and in official capacity; JASON K. PRICE, Corporal, Detective, Police Officer, individually and in official capacity; MARK D. BEAVERS, Captain, Detective, Police Officer, individually and in official capacity; MICHAEL FOLSOM, Crime Analyst, Master Forensic Specialist, individually and in official capacity, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, Magistrate Judge. (3:07-cv-00319-MHL) Submitted: December 20, 2011 Decided: January 6, 2012 Before MOTZ, DAVIS, and KEENAN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. William Shanklin, Appellant Pro Se. William Franklin Devine, WILLIAMS MULLEN, Norfolk, Virginia; Lauren Wheeling, WILLIAMS MULLEN, Richmond, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: William Shanklin, a Virginia inmate, seeks to appeal the district (2006) court s complaint, order the dismissing district his court s 42 U.S.C. orders § 1983 denying his motions for appointment of counsel, and the district court s order denying his Fed. R. Civ. P. 60(b) motion for relief. 1 We dismiss in part and affirm in part. As jurisdiction a threshold Shanklin s matter, appeal of dismissing his § 1983 complaint. we dismiss the district for lack court s of order 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 dismissing the was entered on the docket sheet on July 27, 2010. complaint Shanklin s Fed. R. Civ. P. 59(e) and 60(b) motions were not filed within twenty-eight days after entry of the July 27, 2010 judgment and 1 By consent of the parties and designation of the district court, all proceedings were conducted before a magistrate judge. 3 therefore did not toll the appeal period. See Fed. R. Civ. P. 52(b), 59(e); Fed. R. App. P. 4(a)(4)(A). Shanklin s notice of appeal was filed on July 11, 2011. 2 Because Shanklin failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss his appeal of the district court s July 27, 2010 order. Shanklin s untimely appeal of the order dismissing the complaint orders precludes refusing Simmons, dismiss also 814 for to F.2d lack our appoint 962, of review of Shanklin 967 (4th jurisdiction the district counsel. Cir. his See 1987). appeal Miller We of court s v. therefore the district court s orders denying appointment of counsel. Turning to the merits of Shanklin s remaining claim, we find no abuse of discretion in the district court s order denying Shanklin s Rule 60(b) motion. requisite failed to convincing prevented showing for relief prove the misconduct evidence him from and fully under Shanklin has not made the Rule 60(b)(3), complained of demonstrate and fairly that by such presenting as he has clear and misconduct his claims. McLawhorn v. John W. Daniel & Co., 924 F.2d 535, 538 (4th Cir. 2 For the purpose of this appeal, we assume that the date appearing on the notice of appeal is the earliest date it could have been properly delivered to prison officials for mailing to the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988). 4 1991) (internal quotation marks omitted). Shanklin also has failed to demonstrate extraordinary circumstances sufficient to justify relief under Rule 60(b)(6). See Reid v. Angelone, 369 F.3d 363, 370 (4th Cir. 2004). Accordingly, district court s we orders dismiss denying Shanklin s appeal appointment of of the counsel and dismissing his complaint, and we affirm the district court s order denying Shanklin s Rule 60(b) motion. oral argument adequately because presented in the the facts and materials We dispense with legal contentions before the court are and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 5

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