Glen Dale Spivey v. Leonard Schiofman, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12091
Non-Argument Calendar
____________________
GLEN DALE SPIVEY,
Plaintiff-Appellant,
versus
LEONARD SCHIOFMAN,
DHD Optometrist,
ISAAC MOORE,
Ophthalmologist,
C. E. RICHARDSON,
Medical Doctor Chief Health Officer,
R. VIVAS,
Medical Doctor Chief Health Officer,
JOHN A. BENEKE,
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2 Opinion of the Court 23-12091
Medical Doctor Ophthalmologist, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:22-cv-00018-WS-MAF
____________________
Before WILSON , R OSENBAUM, and L UCK , Circuit Judges.
PER CURIAM:
This appeal is DISMISSED, sua sponte, for lack of jurisdic-
tion. Liberally construing his notice of appeal, Glen Spivey appeals
the district court’s March 20, 2023 order adopting the magistrate
judge’s report and recommendation (“R&R”) and denying his first
motion for reconsideration and the May 12, 2023 order denying his
construed motion for reconsideration of the March 20 order. Un-
der the prison mailbox rule, his notice of appeal is deemed filed on
June 13, 2023. See Fed. R. App. P. 4(c).
The statutory time limit required Glen Spivey to file a notice
of appeal from the March 20, 2023 order by April 19, 2023, which
was 30 days after the district court entered that order. See id. R.
4(a)(1)(A); 28 U.S.C. § 2107(a). Although Spivey filed objections to
the R&R that the district court construed as a motion for
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23-12091 Opinion of the Court 3
reconsideration, that motion was untimely to toll the appeal period
because it was not filed within 28 days of the March 20 order. See
Fed. R. App. P. 4(a)(4)(A)(vi). Thus, his June 13 notice of appeal
was untimely as to the March 20 order.
The statutory time limit required Spivey to file a notice of
appeal from the May 12, 2023 order by June 12, 2023, which was
the first business day after the 30-day period following the district
court’s entry of that order. See id. R. 4(a)(1)(A), 26(a)(1)(C);
28 U.S.C. § 2107(a). Thus, his notice of appeal also was untimely
as to the June 12 order. Additionally, to the extent that Spivey’s
notice of appeal may be construed as challenging any other district
court orders, an appeal from any of those orders would also be un-
timely. Fed. R. App. P. 4(a)(1)(A); 28 U.S.C. § 2107(a).
Finally, there is no basis in the record for relief under Federal
Rules of Appellate Procedure 4(a)(5) or 4(a)(6). Accordingly, the
notice of appeal is untimely and cannot invoke our appellate juris-
diction. See Green v. Drug Enf’t Admin., 606 F.3d 1296, 1300 (11th
Cir. 2010) (noting that the timely filing of a notice of appeal in a
civil case is a jurisdictional requirement, and we cannot entertain
an appeal that is out of time).
All pending motions are DENIED as moot. No petition for
rehearing may be filed unless it complies with the timing and other
requirements of 11th Cir. R. 40-3 and all other applicable rules.
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