Ervin Streater v. Pat Robinson , 472 F. App'x 172 ( 2012 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-6200
    ERVIN L. STREATER,
    Plaintiff - Appellant,
    v.
    PAT S. ROBINSON; J. R. ROWELL; EDDIE CATHEY; SCOTT STERMEN,
    Defendants - Appellees.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte.     Robert J. Conrad,
    Jr., Chief District Judge. (3:11-cv-00600-RJC)
    Submitted:   April 19, 2012                 Decided:   April 26, 2012
    Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
    Affirmed in part, dismissed in part by unpublished per curiam
    opinion.
    Ervin L. Streater, Appellant Pro Se.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Ervin L. Streater seeks to appeal both the district
    court’s dismissal of his 
    42 U.S.C. § 1983
     (2006) complaint and
    the district court’s subsequent denial of his two motions to
    amend his complaint.
    We dismiss for lack of jurisdiction Streater’s appeal
    of the dismissal of his action because the notice of appeal was
    not timely filed as to the district court’s dismissal order.
    Parties in civil cases such as this one 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).    “[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).
    The district court’s order dismissing Streater’s suit
    was entered on the docket on December 20, 2011.              The notice of
    appeal was filed, at earliest, on January 27, 2012. *            Neither of
    Streater’s mid-January motions to amend his complaint can be
    *
    For the purpose of this appeal, we assume that the date
    appearing on the notice of appeal is the earliest date it could
    have been properly delivered to prison officials for mailing to
    the court. Fed. R. App. P. 4(c); Houston v. Lack, 
    487 U.S. 266
    (1988).
    2
    construed as a motion tolling the applicable thirty-day period
    under Fed. R. App. P. 4(a)(4).                 We therefore lack jurisdiction
    to    consider    Streater’s     claims        with    respect     to    the    district
    court’s dismissal order.
    As    for    Streater’s    appeal          of    the   district      court’s
    denial of his two motions to amend his complaint, we conclude
    that the district court did not abuse its discretion in denying
    the   motions,      as   amendment    of   the        complaint     would      have   been
    futile.     See Laber v. Harvey, 
    438 F.3d 404
    , 426-28 (4th Cir.
    2006) (en banc).
    Accordingly, we dismiss Streater’s appeal as to the
    district court’s dismissal order and affirm the district court’s
    judgment     with    respect     to   Streater’s            motions     to    amend   his
    complaint.       We dispense with oral argument because the facts and
    legal    contentions      are   adequately       presented         in   the    materials
    before    the    court    and   argument       would     not   aid      the   decisional
    process.
    AFFIRMED IN PART,
    DISMISSED IN PART
    3
    

Document Info

Docket Number: 12-6200

Citation Numbers: 472 F. App'x 172

Judges: Floyd, Niemeyer, Per Curiam, Shedd

Filed Date: 4/26/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023