Brian Dale Aten v. SOUTH CAROLINA BOARD OF CORRECTIONS, all in their individual and/or their official…

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-1677

BRIAN DALE ATEN,

Plaintiff - Appellant,

v.

SOUTH CAROLINA BOARD OF CORRECTIONS, all in their individual and/or
their official capacity, et al.; SOUTH CAROLINA DEPARTMENT OF
PROBATION, PAROLE, AND PARDON SERVICES, all in their individual and/or
their official capacity, et al.,

Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at
Columbia. Donald C. Coggins, Jr., District Judge. (3:17-cv -00874-DCC)

Submitted: April 28, 2020 Decided: May 13, 2020

Before AGEE and RUSHING, Circuit Judges, and SHEDD, Senior Circuit Judge.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

Brian Dale Aten, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:
Brian Dale Aten seeks to appeal the district court’s order accepting the magistrate
judge’s recommendation and granting summary judgment to Defendants in Aten’s civil
action, and the district court’s subsequent order denying reconsideration. We dismiss in
part and affirm in part.
In civil cases, parties have 30 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). If a party files
a motion under Fed. R. Civ. P. 59 or a motion for relief from judgment under Fed. R. Civ.
P. 60 within 28 days of the judgment’s entry, the appeal period is tolled. Fed. R. App. P.
4(a)(4)(A)(v)-(vi).
The district court entered judgment on September 4, 2018. Aten therefore had until
October 4, 2018, to file a notice of appeal or until October 2, 2018, to file a motion under
Rule 59 or Rule 60 that could toll the period for appeal. Aten filed his postjudgment motion
on October 9, 2018, outside of the 28-day tolling period.
1
He did not file his notice of
appeal until June 24, 2019, without seeking an extension or reopening of the appeal period
from the district court. Because Aten failed to file a timely notice of appeal with respect

1
Aten filed two identical documents, one docketed as “objections,” the other
docketed as a “motion for reconsideration.”

3

to the district court’s order granting summary judgment, we dismiss his appeal as to that
order for lack of jurisdiction.
Aten, however, timely appealed the denial of his postjudgment motion for
reconsideration.
2
We review the district court’s order denying this motion for abuse of
discretion. Hickerson v. Yamaha Motor Corp., 882 F.3d 476, 481 (4th Cir. 2018). In ruling
on an appeal from the denial of a Rule 60(b) motion, “we do not review the merits of the
underlying order but rather only whether the movant satisfied the requirements for Rule
60(b).” Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295, 299
(4th Cir. 2017). (internal citation omitted). To succeed on a Rule 60(b) motion, a movant
“must show that his motion is timely, that he has a meritorious defense to the action, and
that the opposing party would not be unfairly prejudiced by having the judgment set aside.”
Nat’l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993) (internal quotation
marks omitted). Once a movant makes this threshold showing, he must demonstrate that
he is entitled to relief under one of the six subsections of Rule 60(b). Heyman v. M.L.
Mktg. Co., 116 F.3d 91, 94 (4th Cir. 1997).
On appeal, Aten argues generally that he was denied lawful parole and asserts that
the South Carolina Department of Corrections committed libel and/or slander. We have

2
Because Aten’s motion was not filed within 28 days after the entry of the district
court’s judgment dismissing the action, the motion is properly construed as filed pursuant
to Fed. R. Civ. P. 60(b). See Fed. R. Civ. P. 59(e) (providing 28-day filing period).

4

reviewed the record and conclude that the district court did not abuse its discretion in
denying reconsideration under Rule 60(b) with respect to the issues raised on appeal. We
therefore affirm the district court’s order denying reconsideration.
3

We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED IN PART
AND AFFIRMED IN PART

3
To the extent Aten requests counsel in his informal brief, we deny his request.