Jenkins v. Wise
Opinion
Elizabeth Jenkins seeks to appeal the district court’s order adopting the report and recommendation of the magistrate judge and dismissing Jenkins’ civil rights action brought under 42 U.S.C. § 1983 (2000). We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed.
Parties 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). This appeal period is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corr., 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 October 19, 2001. The notice of appeal was filed on November 20, 2001. * Because Jenkins failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we 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.
We originally remanded this case to the district court to determine when Jenkins gave her notice of appeal to prison officials for mailing. On remand, the district court held an evidentiary hearing and determined that Jenkins handed her notice of appeal to prison officials on November 20, 2001. The district court’s finding is supported by substantial evidence and we find no bases to disturb it.
Reference
- Full Case Name
- Elizabeth JENKINS, Plaintiff-Appellant, v. Bob WISE, Governor; Cecil Underwood, Former Governor; Sandra Ilderton, Former Chairperson of the West Virginia Parole Board, Defendants-Appellees
- Status
- Unpublished