Peterson v. Price , 272 F. App'x 309 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6080
ALLAN A. PETERSON,
Plaintiff - Appellant,
v.
BRIAN PRICE; MICHELLE SPEARS; DOMINIC GUTIERREZ; SUSAN
MCCLINTOCK; MAVIS HOLYFIELD,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:06-cv-00106-FPS-JSK)
Submitted: March 27, 2008 Decided: April 4, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Allan A. Peterson, Appellant Pro Se. Betsy S. Jividen, Assistant
United States Attorney, Wheeling, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allan A. Peterson seeks to appeal the district court’s
order adopting the magistrate judge’s report and recommendation and
dismissing his complaint under Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The notice of
appeal was received in this court shortly after expiration of the
sixty-day appeal period. Fed. R. App. P. 4(a)(1)(B). Because
Peterson 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 reveal when Peterson 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, 487 U.S. 266 (1988). The record, as supplemented, will then
be returned to this court for further consideration.
REMANDED
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