OpenJurist

935 F2d 1287 Oliver v. Hendren

935 F.2d 1287
Unpublished Disposition

Langston OLIVER, Plaintiff-Appellant,
v.
Lieutenant HENDREN, Officer Macemore, Officer Williams,
Defendants-Appellees.

No. 90-6664.

United States Court of Appeals, Fourth Circuit.

Submitted Dec. 7, 1990.
Decided June 19, 1991.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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 Middle District of North Carolina, at Salisbury. Frank W. Bullock, Jr., District Judge. (CA-89-599-C-S)

Langston Oliver, appellant pro se.

Lucien Capone, III, Assistant Attorney General, Raleigh, N.C., for appellees.

M.D.N.C.

REMANDED.

Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

North Carolina prisoner Langston Oliver appeals the district court's dismissal of his 42 U.S.C. Sec. 1983 suit. We remand for the district court to act upon Oliver's motion for an extension of time to file an appeal.

2

A district court order or judgment must be appealed within 30 days. Fed.R.App.P. 4(a)(1). Although an appellant may move for an extension of the appeal period within the additional 30-day period provided by Fed.R.App.P. 4(a)(5), the district court may grant an extension only if the petitioner makes a showing of good cause or excusable neglect warranting the grant of an extension. Fed.R.App.P. 4(a)(5). 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)).

3

Here, although Oliver failed to file a notice of appeal within the initial 30-day period established by Rule 4(a)(1), he did file a notice of appeal incorporating a motion for extension of time to appeal within the subsequent 30-day period permitted by Rule 4(a)(5). The district court has not acted upon Oliver's motion for extension of time to appeal. Therefore, we remand for the district court to act upon Oliver's motion.

4

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.

5

REMANDED.