Charles Willingham v. Buncombe County Correctional ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6539
CHARLES WILLINGHAM,
Plaintiff - Appellant,
v.
BUNCOMBE COUNTY CORRECTIONAL CENTER,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Robert J. Conrad,
Jr., Chief District Judge. (1:12-cv-00383-RJC)
Submitted: May 30, 2013 Decided: June 5, 2013
Before SHEDD, DIAZ, and THACKER, Circuit Judges.
Remanded by unpublished per curiam opinion.
Charles D. Willingham, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Willingham seeks to appeal the district
court’s order dismissing his 42 U.S.C. § 1983 (2006) civil
rights action. The district court’s order was entered on the
docket on January 15, 2013. Willingham’s notice of appeal was
filed on March 24, 2013. * In the notice of appeal, Willingham
appears to claim he did not receive notice of the district
court’s order until March 24, 2013. Where, as here, a pro se
appellant files an untimely notice of appeal offering some
excuse for its untimeliness, that notice is properly construed
as a motion to reopen the time to note an appeal under Fed. R.
App. P. 4(a)(6). United States v. Feuver, 236 F.3d 725, 729 n.7
(D.C. Cir. 2001). Accordingly, we defer action on Willingham’s
motion to appoint counsel and remand the case to the district
court for that court to determine whether Willingham can satisfy
the requirements of Rule 4(a)(6). Ogden v. San Juan Cnty.,
32 F.3d 452, 454 (10th Cir. 1994). The record, as supplemented,
will then be returned to this court for further consideration.
REMANDED
*
For the purpose 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. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266,
276 (1988).
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