UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-6106

STACY W. HOWARD, 

 Plaintiff – Appellant,

v.

DIRECTOR JON E. OZMINT, of S.C. Department of Corrections 

also known as John E. Ozmint; WARDEN WILLIE EAGLETON; AARON 

JOYNER, Major; CAPTAIN KENNETH GREEN; S. SKIPPER, IGC of 

the Evans Correctional Institution; T. WOOLBRIGHT; S. 

MOSES; C. FOX; T. SIMMONS; MICHAEL J. STOBBE, Inmate 

Records; JIMMY EDGE, officer; DAVID BRAYBOY, officer, 

 Defendants - Appellees.

No. 11-6459

STACY W. HOWARD,

 Plaintiff – Appellant,

v.

JON OZMINT, of S.C. Department of Corrections also known as 

John E. Ozmint; WARDEN WILLIE EAGLETON; AARON JOYNER, 

Major; CAPTAIN KENNETH GREEN; S. SKIPPER, IGC of the Evans 

Correctional Institution; T. WOOLBRIGHT; S. MOSES; C. FOX; 

T. SIMMONS; MICHAEL J. STOBBE, Inmate Records; JIMMY EDGE, 

officer; DAVID BRAYBOY, officer,

 Defendants - Appellees.
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Appeals from the United States District Court for the District 

of South Carolina, at Greenville. G. Ross Anderson, Jr., Senior

District Judge. (6:08-cv-03171-GRA)

Submitted: July 7, 2011 Decided: September 19, 2011

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

No. 10-6106, dismissed, No. 11-6459, affirmed by unpublished per 

curiam opinion.

Stacy W. Howard, Appellant Pro Se. Leigh Powers Boan, William 

Walter Doar, Jr., MCNAIR LAW FIRM, PA, Pawleys Island, South 

Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.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

In No. 10-6106, Stacy W. Howard appeals from the 

district court’s orders granting summary judgment to Defendants 

in his 42 U.S.C. § 1983 (2006) suit and denying various 

preliminary motions. We previously remanded the case to the 

district court for a factual finding on the timeliness of 

Howard’s notice of appeal, which was due on or before January 8, 

2010, and was filed in the district court on January 14. On 

remand, the district court found that Howard’s notice of appeal 

was given to prison authorities, at the earliest, on January 12 

and was, thus, untimely. In No. 11-6459, Howard appeals from 

the district court’s ruling on remand. 

An appellate court cannot disregard a district court’s 

factual findings absent clear error. A finding is “clearly

erroneous” when the reviewing court “is left with the definite 

and firm conviction that a mistake has been committed.” United 

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). 

While Howard alleges that the prison mailroom does not follow 

protocol and holds mail before stamping or sending it, he 

presents no evidence aside from his own allegations. After a 

review of the evidence before the district court, we find that 

the district court’s factual ruling on the date of filing was 

not clearly erroneous. As such, the district court correctly 

concluded that Howard’s appeal was untimely. Accordingly, we 
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affirm the district court’s order in No. 11-6459 finding that 

Howard’s notice of appeal was untimely filed. 

Faced with this ruling, Howard contends that, when he 

filed his (untimely) notice of appeal, he also amended his 

January 29, 2009, notice of appeal from the denial of his motion 

for a preliminary injunction.1

 He contends that this amended 

notice of appeal was sufficient to permit consideration of the 

final order in the case, as well as various interlocutory orders 

entered both before and after his January 29, 2009, notice of 

appeal. He argues that there is no time limit on amending 

notices of appeal, so even though his notice (and amended 

notice) were untimely filed as to the final order in his case, 

the amended notice of appeal was sufficient to confer 

jurisdiction. 

Howard’s January 29, 2009, notice of appeal timely 

appealed the district court’s order denying his motion for a 

preliminary injunction. That order was an appealable, 

interlocutory order; the appeal was considered on the merits; 

and the appeal was decided on September 30, 2010. Howard’s 

attempt to transform that notice of appeal into an appeal from 

later-filed orders is ineffectual. A premature notice of 

 1 Howard did file an “Amended Notice of Appeal” with his 

January 14, 2010 notice of appeal, listing numerous preliminary 

orders he sought to appeal. 
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appeal, even if rendered valid by the entry of an final order, 

can only secure review of specific orders decided and appealed 

from at the time the premature notice was filed. Any subsequent

orders must be appealed from in accordance the with Rules of 

Appellate Procedure. See Nolan v. U.S. Dep’t of Justice, 973 

F.2d 843, 846 (10th Cir. 1992). Moreover, regarding the earlier 

orders, a notice of appeal must specify the orders being 

appealed. Fed. R. App. P. 3(c)(1)(B). 

Howard’s July 29, 2009, notice of appeal specified 

that it was appealing orders entered on June 3 and July 13, 

2009; his amended notice of appeal (filed on Jan. 14, 2010) adds 

many other orders entered before and after these dates. The 

earlier orders should have been specified in Howard’s July 29, 

2009 notice of appeal,2 and the later orders needed to be 

separately appealed. Accordingly, we conclude that Howard’s 

amended notice of appeal was of no effect and was merely an 

untimely attempt to appeal. 

 2 However, even if Howard had included these earlier orders 

in his first notice of appeal, most of the orders identified 

would have been interlocutory. For instance, in his amended 

notice of appeal, Howard attempts to appeal a January 21, 2009, 

order of the district court denying his discovery motion. This 

order was unappealable until entry of a final order, and any 

premature notice of appeal would have been ineffectual. See In 

re Bryson, 406 F.3d 284, 288 n.2 (4th Cir. 2005). 
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The appeal period in a civil case is “mandatory and 

jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 

264 (1978) (internal quotation marks and citation omitted); see 

also Bowles v. Russell, 551 U.S. 205, 212 (2007) (making clear 

that timely filing of a notice of appeal in a civil case is a 

jurisdictional requirement). As such, we dismiss No. 10-6106 as 

untimely filed and affirm the district court’s findings in No. 

11-6459. We deny Howard’s motions to file a formal brief and 

for appointment of counsel. 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.

No. 10-6106: DISMISSED;

No. 11-6459: AFFIRMED