Jimmy Fitzgerald Smith v. Michael Bell; Melvin Boone

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7437
JIMMY FITZGERALD SMITH,
Plaintiff - Appellant,
v.
MICHAEL BELL; MELVIN BOONE,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:07-ct-03165-H)
Submitted: October 27, 2009 Decided: November 9, 2009
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Jimmy Fitzgerald Smith, Appellant Pro Se. Yvonne Bulluck Ricci,
Assistant Attorney General, Raleigh, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jimmy Fitzgerald Smith seeks to appeal the district
court’s order granting summary judgment to defendant prison
officials and denying relief on his 42 U.S.C. § 1983 claim. 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. Bowles v. Russell, 551 U.S.
205, 209 (2007).
The district court’s order was entered on the docket
on June 17, 2009. The notice of appeal was filed, at the
earliest, on July 27, 2009,∗ forty days after entry of judgment.
Houston v. Lack, 487 U.S. 266, 276 (1988). 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. We deny
his motion for appointment of counsel and dispense with oral
∗ For purposes of this appeal, we assume that the date Smith
wrote on the notice of appeal is the earliest date it could have
been delivered to prison officials for mailing to the court.
See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 476, 486
(1988).
2

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3
argument because the 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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