Vernon A. Clarke, Plaintiff-appellant, v. Michael C. Samberg, Defendant-appellee, 812 F.2d 1400 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 812 F.2d 1400 (4th Cir. 1987) Submitted Jan. 22, 1987. Decided Feb. 23, 1987

Before WIDENER and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Vernon A. Clarke, appellant pro se.


Vernon A. Clarke, a Virginia inmate, seeks to appeal the order of the district court dismissing his civil rights action based on Clarke's failure to comply with the court's order to pay a partial filing fee. The district court's order was entered on October 8, 1986. Clarke's notice of appeal was not filed until November 10, 1986, thirty-three days after the entry of the court's order and three days later than the period prescribed by Fed. R. App. P. 4 (a) (1). Clarke did not file a motion for an extension of time to file his appeal.

Under Fed. R. App. P. 4(a) (1), an appeal must be noted within thirty days after entry of judgment. Under Fed. R. App. P. 4(a) (5), a district court, "upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration [of the appeal period]." Absent a timely request for extension of the appeal period, a notice of appeal filed outside the period allowed by Rule 4(a) (1) is untimely and ineffective to confer appellate jurisdiction. Shah v. Hutto, 722 F.2d 1167 (4th Cir. 1983) (en banc), cert. denied, 466 U.S. 975 (1984).

Since Clarke's notice of appeal was filed outside the 30-day period required by Rule 4(a), Fed. R. App. P., and because Clarke never filed a timely motion for an extension of time, we are without jurisdiction to consider his appeal. Because the dispositive issues have recently been decided authoritatively, we deny leave to proceed in forma pauperis, dispense with oral argument and dismiss the appeal for lack of jurisdiction.