DeAndre James v. Paul Adams ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6114
DEANDRE JAMES,
Petitioner - Appellant,
v.
PAUL ADAMS,
Respondent - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at
Wheeling. John Preston Bailey, District Judge. (5:20-cv-00248-JPB)
Submitted: April 1, 2022 Decided: April 18, 2022
Before WYNN and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.
Remanded by unpublished per curiam opinion.
DeAndre James, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
DeAndre James seeks to appeal the district court’s order dismissing without
prejudice his 28 U.S.C. § 2241 petition for lack of jurisdiction. 1 When the United States
or its officer or agency is a party in a civil case, parties are accorded 60 days after the entry
of the district court’s final judgment or order to note an appeal, Fed. R. App. P. 4(a)(1)(B),
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). However, if a party moves for an extension
of time to appeal within 30 days after expiration of the original appeal period and
demonstrates excusable neglect or good cause, a district court may extend the time to file
a notice of appeal. Fed. R. App. P. 4(a)(5)(A); Washington v. Bumgarner, 882 F.2d 899,
900-01 (4th Cir. 1989).
The district court’s order was entered on the docket on November 8, 2021. James
filed his notice of appeal on January 24, 2022, after the expiration of the 60-day appeal
period but within the 30-day excusable neglect period. 2 Because James’ notice of appeal
contained language requesting an extension of time to file his appeal, we construe it as a
motion for an extension of time under Fed. R. App. P. 4(a)(5). Accordingly, we remand
1
Although the district court dismissed the petition without prejudice, the dismissal
order is final and appealable because mere amendment cannot cure the deficiencies
identified by the district court. See Bing v. Brivo Sys., LLC, 959 F.3d 605, 610 (4th Cir.
2020), cert. denied, 141 S. Ct. 1376 (2021).
2
For the purpose of this appeal, we assume that the date appearing on the notice of
appeal is the earliest date James could have delivered the notice to prison officials for
mailing to the court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).
2
this case to the district court for the limited purpose of determining whether James
demonstrated excusable neglect or good cause warranting an extension of the 60-day
appeal period. The record, as supplemented, may then be returned to this court for further
consideration.
REMANDED
3