Cox v. Lexington County Jail

U.S. Court of Appeals for the Fourth Circuit
Cox v. Lexington County Jail, 31 F. App'x 238 (4th Cir. 2002)
Diana, Gribbon, Michael, Motz, Per Curiam, Widener

Cox v. Lexington County Jail

Opinion

*239 OPINION

PER CURIAM.

Melvin Leroy Cox seeks to appeal the district court’s order dismissing his action against prison officials pursuant to 42 U.S.C.A. § 1983 (West Supp. 2001). We remanded No. 01-6887 to the district court for a determination of whether Cox was entitled to have the period to note an appeal reopened under Fed. R.App. P. 4(a)(6) based on his assertion that he did not receive timely notice of the order in question. The district court denied relief under Rule 4(a)(6), and Cox has noted an appeal from that order as well, which is the subject of No. 01-7908. For the following reasons, we grant the Appellees’ motion to dismiss Cox’s appeal No. 01-6887 from the denial of his § 1983 action and affirm the denial of his Rule 4(a)(6) motion in No. 01-7908.

With respect to the dismissal of Cox’s § 1983 action, parties are accorded thirty days after entry of the district court’s final judgment or order to note an appeal, see Fed. R.App. P. 4(a)(1), unless the district court extends the appeal period under Fed. R.App. P. 4(a)(5) or reopens the appeal period under Rule 4(a)(6). This appeal period is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)). The district court’s order was entered on the docket on December 8, 2000, and Cox’s notice of appeal was filed on May 24, 2001. As a result, Cox’s notice of appeal was untimely.

Although we remanded this appeal to the district court for a determination whether Cox was entitled to a reopening of the appeal period under Rule 4(a)(6), the district court properly denied relief under that provision because Cox failed to apprise the district court of a change of address. See Benavides v. Bureau of Prisons, 79 F.3d 1211, 1214 (D.C.Cir. 1996). Accordingly, because Cox’s notice of appeal is untimely, and he is ineligible to have the period for noting an appeal reopened, we grant the Appellees’ motion to dismiss Cox’s appeal in No. 01-6887 for lack of jurisdiction and affirm in No. 01-7908 the district court’s order denying relief under Rule 4(a)(6) on remand. Additionally, we grant the motion to dismiss filed in No. 01-7908 by Appellees West Columbia Police Department and Lexington County Jail. Finally, while we grant Cox’s motion to amend his request for sanctions, we deny Cox’s motions for appointment of counsel and for general relief and for sanctions. 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.

No. 01-6887 — DISMISSED.

No. 01-7908 — AFFIRMED.

Reference

Full Case Name
Melvin Leroy COX, Plaintiff-Appellant, v. LEXINGTON COUNTY JAIL; Prison Health Service, Incorporated; West Columbia Police Department; Charleston County Jail, Defendants-Appellees; Melvin Leroy Cox, Plaintiff-Appellant, v. Lexington County Jail; Prison Health Service, Incorporated; West Columbia Police Department; Charleston County Jail, Defendants-Appellees
Status
Unpublished