                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7437


JIMMY FITZGERALD SMITH,

                  Plaintiff - Appellant,

             v.

MICHAEL BELL; MELVIN BOONE,

                  Defendants - Appellees.



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-03165-H)


Submitted:    October 27, 2009              Decided:     November 9, 2009


Before NIEMEYER and       GREGORY,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Dismissed by unpublished per curiam opinion.


Jimmy Fitzgerald Smith, Appellant Pro Se. Yvonne Bulluck Ricci,
Assistant  Attorney   General,  Raleigh,  North  Carolina,  for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Jimmy Fitzgerald Smith seeks to appeal the district

court’s     order    granting     summary   judgment   to    defendant     prison

officials and denying relief on his 42 U.S.C. § 1983 claim.                     We

dismiss the appeal for lack of jurisdiction because the notice

of appeal was not timely filed.

             Parties are accorded thirty 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).                This appeal period

is mandatory and jurisdictional.             Bowles v. Russell, 551 U.S.

205, 209 (2007).

             The district court’s order was entered on the docket

on   June   17,     2009.   The    notice   of   appeal    was   filed,   at   the

earliest, on July 27, 2009, ∗ forty days after entry of judgment.

Houston v. Lack, 487 U.S. 266, 276 (1988).                Because Smith failed

to file a timely notice of appeal or to obtain an extension or

reopening of the appeal period, we dismiss the appeal.                    We deny

his motion for appointment of counsel and dispense with oral

      ∗
       For purposes of this appeal, we assume that the date Smith
wrote on the notice of appeal is the earliest date it could have
been delivered to prison officials for mailing to the court.
See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 476, 486
(1988).



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argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                      DISMISSED




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