Restoney Robinson, Plaintiff-appellant, v. Sergeant Little; B. T. Brook; Sergeant William,defendants-appellees.in Re: Restoney Robinson, Petitioner, 51 F.3d 268 (4th Cir. 1995)

Restoney Robinson filed a notice of appeal and a mandamus petition challenging the district court's order denying relief on his 42 U.S.C. § 1983 (1988) action and imposing a prefiling injunction on further actions filed in the United States District Court for the Western District of North Carolina.

In No. 94-7426, Robinson noticed the appeal outside the thirty-day appeal period established by Fed. R. App. P. 4(a) (1), failed to obtain an extension of the appeal period within the additional thirty-day period provided by Fed. R. App. P. 4(a) (5), and is not entitled to relief under Fed. R. App. P. 4(a) (6). 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)). Robinson's failure to note a timely appeal or obtain an extension of the appeal period deprives this Court of jurisdiction to consider this case.

In No. 94-8095, the mandamus petition, Robinson seeks an order rescinding the district court's order. Mandamus relief is not available because Robinson has another available remedy, namely to file a Fed. R. Civ. P. 60(b) motion for reconsideration. In re Beard, 811 F.2d 818, 826 (4th Cir. 1987).

For these reasons, in No. 94-7426, we dismiss the appeal as untimely. In No. 94-8095, we grant leave to proceed in forma pauperis, but deny the petition.^*  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. 94-7426--DISMISSED

No. 94-8095--PETITION DENIED