Harold Pless, Sr. v. Gary Watkins , 547 F. App'x 212 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2111
HAROLD L. PLESS, SR.,
Plaintiff – Appellant,
v.
GARY WATKINS, Detective of Kannapolis Police Department;
JENNIFER HYATT, Detective; TEN UNKNOWN,
Defendants - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cv-00094-CCE-LPA)
Submitted: November 21, 2013 Decided: November 25, 2013
Before KING, DUNCAN, and DIAZ, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Harold L. Pless, Sr., Appellant Pro Se. Jaye E. Bingham-Hinch,
CRANFILL SUMNER & HARTZOG, LLP, Raleigh, North Carolina; Patrick
Houghton Flanagan, Kelly Beth Smith, CRANFILL SUMNER & HARTZOG,
LLP, Charlotte, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard L. Pless, Sr., appeals the district court’s
judgment in favor of Defendants in Pless’ civil action and the
court’s order denying his motion to reconsider that judgment.
For the reasons that follow, we dismiss in part and affirm in
part.
While Pless’ notice of appeal designated only the
court’s August 22, 2013 order denying reconsideration, his
informal brief appears primarily to challenge the district
court’s order requiring Defendants to explain their untimely
summary judgment motion and its order granting summary judgment
in favor of Defendants. However, we lack jurisdiction to review
these orders. 1 Because Pless’ post-judgment motion was not filed
within twenty-eight days of the judgment, it did not toll the
appeal period. Fed. R. App. P. 4(a)(4)(A) (addressing tolling
of appeal period pending disposition of certain post-judgment
motions); Fed. R. Civ. P. 59(e) (stating time to file motion to
alter or amend judgment). Pless’ notice of appeal therefore was
untimely as to the court’s underlying judgment and all other
1
Although the parties do not address the timeliness of the
appeal, we “are obliged to inquire into jurisdiction sua sponte
if there is doubt as to its existence.” Dickens v. Aetna Life
Ins. Co., 677 F.3d 228, 230 (4th Cir. 2012) (citing Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278
(1977)).
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orders, except the post-judgment order denying reconsideration.
See Fed. R. App. P. 4(a)(1)(A) (providing thirty-day appeal
period). Accordingly, we dismiss Pless’ appeal in part, insofar
as it challenges the court’s underlying judgment in favor of
Defendants.
Turning to the order denying reconsideration, we
conclude that the district court did not abuse its discretion in
denying this motion, as Pless did not meet the requisite showing
for Rule 60(b) relief. 2 See Fed. R. Civ. P. 60(b) (enumerating
grounds for relief); Aikens v. Ingram, 652 F.3d 496, 500-01 (4th
Cir. 2011) (en banc) (addressing requirements for Rule 60(b)
relief, and recognizing that Rule 60(b) motion is not substitute
for appeal); Dowell v. State Farm Fire & Cas. Auto Ins. Co., 993
F.2d 46, 48 (4th Cir. 1993) (describing required threshold
showing). Thus, finding no reversible error, we affirm in part,
insofar as the appeal challenges the district court’s order
denying reconsideration.
We grant Pless leave to proceed in forma pauperis. We
dispense with oral argument because the facts and legal
2
A motion for reconsideration filed outside the time limits
for filing a Rule 59(e) motion is construed as one seeking Rule
60(b) relief. In re Burnley, 988 F.2d 1, 2-3 (4th Cir. 1992).
3
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
4