Damon Elliott v. USDA

USCA4 Appeal: 23-1990 Doc: 7 Filed: 05/24/2024 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1990

DAMON EMANUEL ELLIOTT,

Plaintiff - Appellant,

v.

UNITED STATES DEPARTMENT OF AGRICULTURE,

Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Lydia Kay Griggsby, District Judge. (1:22-cv-00142-LKG)

Submitted: April 30, 2024 Decided: May 24, 2024

Before THACKER and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Damon Emanuel Elliott, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. *2 USCA4 Appeal: 23-1990 Doc: 7 Filed: 05/24/2024 Pg: 2 of 3

PER CURIAM:

Damon Emanuel Elliott appeals the district court’s memorandum opinion and order

dismissing his complaint. We dismiss the appeal for lack of jurisdiction because the notice

of appeal was not timely filed.

When the United States or its officer or agency is a party in a civil case, the notice

of appeal must be filed no more than 60 days after the entry of the district court’s final

judgment or order, Fed. R. App. P. 4(a)(1)(B), 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). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional

requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007).

The district court entered its order on June 26, 2023. A timely notice of appeal was

due by August 25, 2023. Elliott’s mailed notice of appeal was dated August 14, 2023,

postmarked September 13, 2023, beyond the 60-day appeal period, and received by the

district court on September 15, 2023. An inmate’s notice of appeal is considered filed as

of the date it was properly delivered to prison officials for mailing. Fed. R. App.

P. 4(c)(1)(A); Houston v. Lack, 487 U.S. 266, 276 (1988). The inmate’s notice of appeal

must include “a declaration in compliance with 28 U.S.C. § 1746—or a notarized

statement—setting out the date of deposit and stating that first-class postage is being

prepaid; or . . . evidence (such as a postmark or date stamp) showing that the notice was so

deposited and that postage was prepaid.” Fed. R. App. P. 4(c)(1)(A)(i), (ii). Elliott did not

include a declaration or notarized statement setting out the date the notice was deposited

in the prison’s mail system. *3 USCA4 Appeal: 23-1990 Doc: 7 Filed: 05/24/2024 Pg: 3 of 3

Although the notice of appeal was filed with the district court within the excusable

neglect window, it cannot serve as a motion to extend the appeal period under Rule 4(a)(5).

See Shah v. Hutto, 722 F.2d 1167, 1168-69 (4th Cir. 1983) (en banc) (“A bare notice of

appeal should not be construed as a motion for extension of time, where no request for

additional time is manifest.”); see also Myers v. Stephenson, 748 F.2d 202, 204

(4th Cir. 1984) (“The relevant filing period for all appellants, pro se or otherwise, can be

extended only by explicitly requesting an extension of time in accordance with

[Rule] 4(a)(5).”).

Accordingly, because Elliott 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 this court and argument would not aid the decisional process.

DISMISSED