Robert Smith v. David Baker, No. 12-6706 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-6706 ROBERT WAYNE SMITH, Plaintiff - Appellant, v. DAVID BAKER, Defendant - Appellee, and NORTH CAROLINA DEPARTMENT UTILIZATION REVIEW BOARD, OF CORRECTION HEALTH SERVICE Defendant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Robert J. Conrad, Jr., Chief District Judge. (5:11-cv-00035-RJC) Submitted: July 26, 2012 Decided: August 2, 2012 Before MOTZ, DAVIS, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Robert Wayne Smith, Appellant Pro Se. Elizabeth Pharr McCullough, Kelly Elizabeth Street, YOUNG, MOORE & HENDERSON, PA, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert court s action. order Wayne denying Smith relief seeks on to appeal the 42 U.S.C. ยง 1983 his district (2006) We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. 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 was entered on the docket on March 5, 2012. The notice earliest, on April 9, 2012. of appeal was filed, at the Because Smith failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. for appointment of counsel are denied. Smith s motions We dispense with oral argument because the facts and legal contentions are adequately We presume that the date on the notice of appeal is the earliest date it could have been delivered to prison officials for mailing to the court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988). 2 presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3
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