Curtis Eugene Sparks, Jr. v. BOBBY RUSSELL, Western Virginia Regional Jail

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6234
CURTIS EUGENE SPARKS, JR.,
Plaintiff - Appellant,
v.
BOBBY RUSSELL, Western Virginia Regional Jail,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Michael F. Urbanski, Chief District Judge. (7:21-cv-00037-MFU-PMS)
Submitted: May 9, 2024 Decided: June 6, 2024
Before NIEMEYER, KING, and RICHARDSON, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Curtis Eugene Sparks, Jr., Appellant Pro Se. Christopher Stanislaw Dadak, GUYNN
WADDELL, P.C., Salem, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Curtis Eugene Sparks, Jr., seeks to appeal the district court’s order dismissing
his 42 U.S.C. § 1983 complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).
We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely
filed.
In civil cases, parties have 30 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). “[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 judgment on January 7, 2022. Sparks filed his notice
of appeal on February 25, 2022. See Houston v. Lack, 487 U.S. 266, 276 (1988)
(establishing prison mailbox rule); Fed. R. App. P. 4(c)(1)(A)(ii). Sparks’ notice of appeal
was clearly untimely. In his notice of appeal, however, Sparks claimed that he had not
received the dismissal order and had discovered the dismissal of his case through
independent means. Accordingly, we liberally construed the notice of appeal as a motion
to reopen the appeal period under Rule 4(a)(6) and remanded to the district court to
determine whether the appeal period should be opened. Sparks v. Russell, No. 22-6234,
2022 WL 1711664, at *1 (4th Cir. May 27, 2022). We also advised the district court that
it may consider the motion to reopen the appeal period in conjunction with Sparks’ then-
pending motion for an extension of the appeal period. Id.

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On remand, the district court construed Sparks’ motion for an extension of the
appeal period as a motion to reopen the appeal period because it was filed outside the 30-
day excusable neglect period. See Fed. R. App. P. 4(a)(5)(A). Considering both motions
together, the court determined that Sparks had satisfied the requirements for reopening the
appeal period. Specifically, the court found that: (1) Sparks did not receive notice of the
entry of the order within 21 days after entry; (2) he filed the motions within 180 days after
entry of the order; and (3) reopening the appeal period would not prejudice either party.
See Fed. R. App. P. 4(a)(6); Shuler v. Orangeburg Cnty. Sheriff’s Dep’t, 71 F.4th 236, 246
(4th Cir. 2023) (explaining that 180-day deadline applies when litigant “did not receive
notice of the entry of judgment because it was returned as undeliverable”).
After granting the motions to reopen the appeal period, the district court deemed
timely the notice of appeal filed on February 25. However, in Parrish v. United States,
74 F.4th 160 (4th Cir. 2023), we rejected the argument that a district court’s order
reopening the appeal period can validate the appellant’s prior untimely notice of appeal.
Id. at 164-65. To the contrary, we held that Rule 4(a)(6) and the statutory provision behind
it, 28 U.S.C. § 2107(c), “provide[] for a new 14-day window for filing a notice of appeal”
and, therefore, the appellant had to file a new notice of appeal within 14 days of the entry
of the district court’s reopening order and could not rely on his prior notice of appeal. Id.
at 165; see id. at 166-67. And because the appellant did not file a new notice of appeal
within 14 days of the district court’s reopening order, we dismissed the appeal as untimely.
Id. at 167.

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The same holds true here. While the district court advised Sparks that his prior
notice of appeal would be deemed timely filed, a litigant’s reliance on a district court’s
error does not cure the jurisdictional defect. See id. at 165 (“Despite the fact that the
appellant relied on the district court’s error in authorizing 17 days, the Supreme Court
concluded [in Bowles] that the appellant’s appeal had to be dismissed because statutory
limitations on the timing of appeals are mandatory and jurisdictional and are not susceptible
to equitable modification.” (internal quotation marks omitted)). And because Sparks did
not file a new notice of appeal after the district court reopened the appeal period, we lack
jurisdiction to consider the appeal and dismiss the appeal as untimely. See id. at 167. We
deny Sparks’ motions for assignment of counsel. 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

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