Steven Banks v. Vincent Gore , 677 F. App'x 130 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7512
STEVEN LEON BANKS,
Plaintiff - Appellant,
v.
VINCENT MYRON GORE, Head – Physician; A. SMITH, Nurse; NURSE
KEYS,
Defendants – Appellees,
and
NURSE GOODE; DR. ABAGUTTA; NURSE GRIFFITH; ARMOR HEALTH
CARE; PTX DIALYSIS, Dialysis – Provider,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:14-cv-00205-CMH-JFA)
Submitted: February 16, 2017 Decided: February 22, 2017
Before GREGORY, Chief Judge, DUNCAN, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Remanded by unpublished per curiam opinion.
Steven Leon Banks, Appellant Pro Se. Elizabeth Martin
Muldowney, RAWLS, MCNELIS & MITCHELL, PC, Richmond, Virginia,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Steven Leon Banks seeks to appeal the district court’s
order denying what the district court construed as a motion for
reconsideration of its order granting Defendants summary
judgment. 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). The district court may, however,
extend the time for filing a notice of appeal if a party so
moves within thirty days after expiration of the original appeal
period and demonstrates excusable neglect or good cause for the
extension. Fed. R. App. P. 4(a)(5)(A)(i)-(ii); Washington v.
Bumgarner, 882 F.2d 899, 900–01 (4th Cir. 1989).
The district court’s order denying Banks’ motion for
reconsideration was entered on the docket on September 21, 2016.
Thus, Banks had until October 21, 2016, to file a notice of
appeal. Banks’ notice of appeal was filed, at the earliest, on
October 24, 2016. * Because Banks’ notice of appeal was filed
beyond the expiration of the appeal period, but within the
thirty-day excusable neglect period, we construe Banks’ filing
as a timely request for an extension of time to file an appeal.
* See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding
that a pro se prisoner’s notice of appeal is considered filed
when it is delivered to prison authorities for mailing to the
court).
3
Accordingly, we remand this case to the district court for the
limited purpose of determining whether Banks has demonstrated
excusable neglect or good cause warranting an extension of the
appeal period. The record, as supplemented, will then be
returned to this court for further consideration.
REMANDED
4