Robert Derek Lurch v. Fayetteville Police Department; the Pantry, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1038
ROBERT DEREK LURCH,
Plaintiff - Appellant,
v.
FAYETTEVILLE POLICE DEPARTMENT; THE PANTRY, INC.,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:13-cv-00394-BO)
Submitted: April 19, 2016 Decided: April 22, 2016
Before AGEE, DIAZ, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert Derek Lurch, Appellant Pro Se. Christopher M. Hinnant,
CRANFILL, SUMNER & HARTZOG, LLP, Wilmington, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert Derek Lurch seeks to appeal the district court’s
order adopting the recommendation of the magistrate judge and
dismissing his civil action, its order denying his motion to
reopen, and its order denying his motion for reconsideration.
We dismiss the appeal for lack of jurisdiction because the
notice of appeal was not timely filed.
Parties are accorded 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). “Lack of notice of
the entry does not affect the time for appeal or relieve-or
authorize the court to relieve-a party for failing to appeal
within the time allowed, except as allowed by Federal Rule of
Appellate Procedure (4)(a).” Fed. R. Civ. P. 77(d)(2).
Rule 4(a)(6) of the Federal Rules of Appellate Procedure
permits the reopening of the appeal period if a party has not
received notice of the judgment or order within 21 days after
entry, but the motion requesting such relief must be filed
within 180 days after entry of the judgment or 14 days after the
party received notice of the judgment or order, whichever is
earlier. Fed. R. App. P. 4(a)(6). The time requirements of

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Rule 4(a) are mandatory and jurisdictional. Bowles v. Russell,
551 U.S. 205, 208-14 (2007).
The district court’s orders were entered on the docket on
August 1, 2013, September 23, 2015, and November 6, 2015,
respectively. The notice of appeal was filed on January 6,
2016.* In the notice, Lurch appears to claim that he was not
contacted regarding the dismissal of his action in 2013.
However, the 180-day reopening period expired well before Lurch
filed his notice of appeal. Thus, Lurch is not eligible for
reopening of the appeal period with respect to the August 1,
2013, order. See Nunley v. City of Los Angeles, 52 F.3d 792,
794-95 (9th Cir. 1995); Hensley v. Chesapeake & Ohio Ry. Co.,
651 F.2d 226, 228 (4th Cir. 1981). Additionally, there is no
indication from the record that Lurch did not receive notice of
the district court’s September and November 2015 denial orders
within 21 days of their entry. Lurch further did not move for
an extension of the appeal periods.
Accordingly, because Lurch failed to file a timely notice
of appeal or to obtain an extension of the appeal periods and is
* It appears Lurch was incarcerated when he filed his notice
of appeal. Accordingly, for purposes of this appeal, we assume
that the postmark date appearing on the envelope containing the
undated notice of appeal is the earliest date it could have been
properly delivered to prison officials for mailing to the court.
Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266, 276 (1988).

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not eligible for a reopening of the appeal periods, 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

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