865 F. 2d 1256 - Bembry v. B Reeves
865 F2d 1256 Bembry v. B Reeves
865 F.2d 1256
Unpublished Disposition
James Michael BEMBRY, Sr., Plaintiff-Appellant,
v.
B. REEVES; R. Mayfield, Captain; B.C. Counts; Ms.
Eichinger; G.L. Cleveger, Sgt.; L.R. Day,
Defendants-Appellees.
No. 88-6756.
United States Court of Appeals, Fourth Circuit.
Submitted: Oct. 25, 1988.
Decided: Dec. 27, 1988.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
James Michael Bembry, Sr., appellant pro se.
William W. Muse, Assistant Attorney General, for appellees.
Before DONALD RUSSELL, MURNAGHAN and CHAPMAN, Circuit Judges.
PER CURIAM:
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James Bembry, Sr., a state prisoner, submitted his notice of appeal to prison authorities outside the 30-day period established by Fed.R.App.P. 4(a)(1). It was therefore untimely. See Houston v. Lack, 56 U.S.L.W. 4728 (U.S. June 24, 1988) (No. 87-5428). In addition, he did not submit his notice of appeal or move for an extension of the appeal period within the additional 30-day period provided by Fed.R.App.P. 4(a)(5).1
The time periods established by Fed.R.App.P. 4 are "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). Appellant's failure to note a timely appeal or obtain an extension of the appeal period deprives this Court of jurisdiction to consider this case. We therefore deny leave to proceed in forma pauperis and dismiss the appeal.
DISMISSED.
Bembry seems to have dated his notice of appeal August 2, 1988. For the purposes of determining our jurisdiction over this appeal, we assume that August 2 is the earliest date that Bembry would have given his notice of appeal to prison authorities for mailing to the district court. The district court dismissed his suit on May 2, 1988