Cornelius Tucker, Jr. v. Lieutenant Signal Correctional Officer Hinnant Gary Dixon Lynn C. Phillips

46 F.3d 1126, 1995 U.S. App. LEXIS 7041, 1995 WL 25737

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 18, 1995
• Docket: 94-6951
• Status: Unpublished

Opinion

46 F.3d 1126

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Cornelius TUCKER, Jr., Plaintiff-Appellant,
v.
LIEUTENANT SIGNAL; Correctional Officer Hinnant; Gary
Dixon; Lynn C. Phillips, Defendants-Appellees.

No. 94-6951.

United States Court of Appeals, Fourth Circuit.

Submitted Dec. 13, 1994.
Decided Jan. 18, 1995.

Cornelius Tucker, Jr., Appellant Pro Se.

Before WIDENER and NIEMEYER, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

OPINION

PER CURIAM:

Cornelius Tucker, Jr., appeals the district court's denial of his motion to file a civil suit pursuant to a prefiling injunction. We remand for the district court to act upon Tucker's motion for an extension of time to file an appeal.

A district court order or judgment must be appealed within thirty days. Fed. R.App. P. 4(a)(1). 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)). An appellant may move for an extension of the appeal period within the additional thirty-day period provided by Fed. R.App. P. 4(a)(5); however, 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).

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

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.

REMANDED