Jimmy Fitzgerald SMITH, Plaintiff-Appellant, v. Michael BELL; Melvin Boone, Defendants-Appellees, 352 F. App'x 834

Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit.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. RApp. 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. RApp. P. 4(a)(6). This appeal period is mandatory and jurisdictional. Bowles v. Russell, 551 U.S. 205, 209, 127 S.Ct. 2360, 168 L.Ed.2d 96 (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, 108 S.Ct. 2379, 101 L.Ed.2d 245 (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 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. 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. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).