Tate v. Hart ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7919
LACY JERVAY TATE,
Plaintiff - Appellant,
versus
JOHNATHON A. HART; DEBRORAH CROWDER,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-ct-03067-H)
Submitted: April 11, 2007 Decided: May 25, 2007
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Lacy Jervay Tate, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lacy Jervay Tate, a North Carolina pre-trial detainee,
seeks to appeal the district court’s order dismissing his 42 U.S.C.
§ 1983 (2000) action without prejudice. The notice of appeal was
received in the district court shortly after the expiration of the
appeal period. Because Tate is incarcerated, the notice is
considered filed as of the date it was properly delivered to prison
officials for mailing to the court. Fed. R. App. P. 4(c)(1);
Houston v. Lack, 487 U.S. 266 (1988). The record does not
conclusively reveal when Tate gave the notice of appeal to prison
officials for mailing. Accordingly, we remand the case for the
limited purpose of allowing the district court to obtain this
information from the parties and to determine whether the filing
was timely under Fed. R. App. P. 4(c)(1) and Houston v. Lack. The
record, as supplemented, will then be returned to this court for
further consideration.
REMANDED
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