                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-7661



JOHN DAVID MCBRIDE,

                                             Plaintiff - Appellant,

          versus


THE STATE OF VIRGINIA PENAL SYSTEM; STANLEY P.
KLEIN, Judge,

                                            Defendants - Appellees.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-03-690)


Submitted:   December 9, 2004           Decided:    December 17, 2004


Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


John David McBride, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          John David McBride seeks to appeal the district court’s

order dismissing without prejudice his 42 U.S.C. § 1983 (2000)

action pursuant to 42 U.S.C. §§ 1915(e)(2), 1915A (2000) and

Heck v. Humphrey, 512 U.S. 477 (1994).   We dismiss the appeal for

lack of jurisdiction because the notice of appeal was not timely

filed.

          Parties are given 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), 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.”   Browder v. Dir., Dep’t of Corr., 434 U.S.

257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220,

229 (1960)).

          The district court’s order adopting the magistrate’s

recommendation was entered on the docket on July 9, 2004.   McBride

filed a timely motion for reconsideration on July 21, 2004.    The

district court’s order denying McBride’s motion was entered on the

docket on August 2, 2004.     The notice of appeal was filed on

September 25, 2004.*    Because McBride failed to file a timely


     *
      For purposes of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to the
court. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266,
270-72 (1988).

                              - 2 -
notice of appeal or to obtain an extension or reopening of the

appeal period, we dismiss the appeal.      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.

                                                        DISMISSED




                              - 3 -
