leroy-leslie-kelly-jr-v-edward-w-murray-director-louis-b-cei-manager , 818 F.2d 861 ( 1987 )

818 F.2d 861
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Leroy Leslie KELLY, Jr., Plaintiff-Appellant,
v.
Edward W. MURRAY, Director; Louis B. Cei, Manager; Joseph
F. Lewis, Fac. Dir. A; Francis E. Brown, Fac. Dir. B; C.W.
Parker, Sgt. OIC; Louie Grogan, Corr. Office; Frederick
Brock, Offi.; Morris Allen, Corr. Off., Defendants- Appellees.

No. 86-6792.

United States Court of Appeals, Fourth Circuit.

Submitted March 30, 1987.
Decided May 8, 1987.

Before RUSSELL, CHAPMAN and WILKINS, Circuit Judges.

Leroy Leslie Kelly, Jr., appellant pro se.

PER CURIAM:

1

Leroy L. Kelly, a Virginia inmate, appeals the district court's dismissal of his 42 U.S.C. Sec. 1983 action. Leave to proceed in forma pauperis is denied and the appeal is dismissed for lack of jurisdiction because Kelly filed an untimely notice of appeal.

2

After filing his complaint in the district court, Kelly was sent notice to pay a partial filing fee or to explain any circumstances which might excuse payment. When Kelly did not respond within the requisite time period, the district court, on September 19, 1986, dismissed his complaint without prejudice. Kelly had until October 20, 1986, to file a timely notice of appeal. See Fed. R. App. P. 4(a)(1) (notice of appeal must be filed within thirty days of entry of judgment). His appeal was filed on October 22, 1986.

3

On appeal Kelly argues that he did not receive the order requiring a partial fee or the order dismissing his suit as his address had changed. Failure to receive the court order, however, does not affect the time to appeal or relieve the party of failure to appeal within the time allowed. See Hensley v. Chesapeake & Ohio Railway Co., 651 F.2d 226, 228-29 (4th Cir. 1981); Fed. R. Civ. P. 77(d). In addition, this Court is unable to construe a bare and untimely notice of appeal as a motion for an extension of time. See Shah v. Hutto, 722 F.2d 1167, 1168 (4th Cir. 1983) (en banc), cert. denied, 466 U.S. 975 (1984). Thus, we deny leave to proceed in forma pauperis and dismiss this appeal for lack of jurisdiction. As Kelly's suit was dismissed without prejudice, he is free to refile his claim with the district court. Accordingly, because the dispositive issues have recently been decided authoritatively, we dispense with oral argument, deny leave to proceed in forma pauperis, and dismiss the appeal.

4

DISMISSED.