Thomas Harley v. DOCTOR BEIOH, Doctor at Kershaw Correctional Institution

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6234
THOMAS HARLEY,
Plaintiff - Appellant,
v.
DOCTOR BEIOH, Doctor at Kershaw Correctional Institution;
NURSE GARDNER, Nurse at Kershaw Correctional Institution;
LIEUTENANT ROBINSON, Lieutenant at Kershaw Correctional
Institution; BRCI PRISON OFFICIALS; JON OZMINT, Director of
South Carolina Department of Corrections,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. R. Bryan Harwell, District Judge.
(3:06-cv-01792-RBH)
Submitted: May 21, 2009 Decided: June 1, 2009
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas Harley, Appellant Pro Se. James M. Davis, Jr., Joel Steve
Hughes, DAVIDSON & LINDEMANN, PA, Columbia, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Thomas Harley seeks to appeal the district court’s
order adopting the magistrate judge’s recommendation and
dismissing his 42 U.S.C. § 1983 (2000) complaint. 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). This appeal period
is “mandatory and jurisdictional.” Browder v. Dir., Dep’t of
Corr., 434 U.S. 257, 264 (1978) (quoting United States v.
Robinson, 361 U.S. 220, 229 (1960)).
The district court’s order was entered on the docket
on February 26, 2008. The notice of appeal was filed on
February 3, 2009.* Because Harley failed to file a timely notice
of appeal or to obtain an extension or reopening of the appeal
period, we deny his motion for a preliminary injunction and
dismiss the appeal. We dispense with oral argument because the
* 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,
270 (1988).
2

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3
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED

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