902 F. 2d 1564 - Bembry v. De Fittz
902 F2d 1564 Bembry v. De Fittz
902 F.2d 1564
Unpublished Disposition
James Michael BEMBRY, Sr., Plaintiff-Appellant,
v.
D.E. FITTZ, Defendant-Appellee.
No. 89-6033.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 11, 1990.
Decided April 20, 1990.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. B. Waugh Crigler, United States Magistrate. (C/A No. 89-567-R)
James Michael Bembry, Sr., appellant pro se.
William W. Muse, Office of the Attorney General of Virginia, Richmond, Va., for appellee.
W.D.Va.
DISMISSED.
Before K.K. HALL and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
Advertisement
James Michael 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 failed to move for an extension of the appeal period within the additional 30-day period provided by Fed.R.App.P. 4(a)(5).
The time periods established by Fed.R.App. 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. 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.
DISMISSED.
For the purposes of this appeal, we assume that the date appellant placed on the notice of appeal is the earliest date he would have submitted it to prison authorities