                                 UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                 No. 09-6476


RONALD MAYBERRY,

                   Plaintiff - Appellant,

             v.

NURSE SUSAN,

                   Defendant – Appellee,

             and

WASHINGTON    COUNTY   CORRECTIONAL    JAIL;   CORRECTIONAL    OFFICER
TERRY,

                   Defendants.



Appeal from the United States District Court for the Eastern
District   of   North   Carolina,   at   Raleigh. Malcolm J.
Howard, Senior District Judge. (5:07-ct-03106-H)



Submitted:    May 7, 2009                        Decided:     June 2, 2009


Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.


Remanded by unpublished per curiam opinion.


Ronald Mayberry, Appellant Pro Se. Walter Gregory Merritt, Jay
C. Salsman, HARRIS, CREECH, WARD & BLACKERBY, New Bern, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Ronald Mayberry seeks to appeal the district court’s

order entering summary judgment against him.                            Susan Simmons,

referred to by Mayberry as “Nurse Susan,” has moved to dismiss

the appeal as untimely.

              Pursuant      to     Federal       Rule     of    Appellate         Procedure

4(a)(1), a notice of appeal in a civil case must be filed with

the district court within thirty days after judgment is entered.

“[T]he timely filing of a notice of appeal in a civil case is a

jurisdictional requirement.”                Bowles v. Russell, 551 U.S. 205,

___, 127 S. Ct. 2360, 2366 (2007).                      Therefore, the appeal must

be dismissed if the notice of appeal is untimely.                           Washington v.

Bumgarner, 882 F.2d 899, 900 (4th Cir. 1989).                               The district

court may extend the filing time if “a party so moves no later

than   30    days   after    the    time     prescribed        by   .   .   .    Rule    4(a)

expires” and the party shows excusable neglect or good cause.

Fed. R. App. P. 4(a)(5)(A)(i)-(ii).

              The   district        court     granted       Simmons’s           motion    for

summary judgment on February 9, 2009.                      Therefore, Mayberry had

thirty      days,   or   until     March 11,       2009,       to   file    a    notice   of

appeal.      Mayberry filed his notice of appeal, at the earliest,




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on March 12, 2009, thirty-one days after judgment was entered. *

Mayberry did not move in the district court for an extension of

the   filing    time.      However,     Mayberry’s    response       to    Simmons’s

motion to dismiss, filed in this court within the thirty-day

excusable      neglect    period,     requested    that   his   appeal       not    be

dismissed because he cannot afford an attorney and is disabled.

            We construe Mayberry’s response to Simmons’s motion to

dismiss as a timely request for an extension of the thirty-day

appeal period.       Therefore, we remand this case to the district

court for the limited purpose of enabling the court to determine

whether   Mayberry       has   shown   excusable     neglect    or    good     cause

warranting     an   extension    of    time   to   appeal.      The       record,   as

supplemented, will then be returned to this court for further

consideration.      We defer ruling on the motion to dismiss pending

that return.

                                                                            REMANDED




      *
       For purposes of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been delivered to prison officials for mailing.        See
Houston v. Lack, 487 U.S. 266, 276 (1988).


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