Steven Scharr v. Stephanie Hollembeak , 675 F. App'x 364 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7433
STEVEN LEE SCHARR,
Petitioner - Appellant,
v.
STEPHANIE HOLLEMBEAK,
Respondent – Appellee,
and
UNITED STATES OF AMERICA,
Respondent.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:16-hc-02025-BO)
Submitted: January 31, 2017 Decided: February 3, 2017
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Remanded by unpublished per curiam opinion.
Steven Lee Scharr, Appellant Pro Se. Christina Ann Kelley,
BUREAU OF PRISONS, Butner, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pending before the court is the district court’s order
granting what it construed as Steven Lee Scharr’s Fed. R. Civ.
P. 41 motion to voluntarily dismiss Scharr’s 28 U.S.C. § 2241
(2012) petition, as well as Scharr’s application to proceed in
forma pauperis. After the district court dismissed the § 2241
petition, Scharr filed a letter on October 17, 2016, * explaining
that he did not want to dismiss his § 2241 petition (October
17th correspondence). The district court construed the October
17th correspondence, which was filed only ten days after the
district court dismissed Scharr’s petition, as a notice of
appeal.
In light of Scharr’s assertion that he did not intend to
voluntarily dismiss his § 2241 petition, the district court
should have construed the October 17th correspondence as a Fed.
R. Civ. P. 59(e) motion for reconsideration of the dismissal
order. See Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978)
(holding, under a prior version of Rule 59(e), that “if a post-
judgment motion is filed within ten days of the entry of
judgment and calls into question the correctness of that
* 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).
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judgment it should be treated as a motion under Rule 59(e),
however it may be formally styled”).
Accordingly, we grant Scharr’s application to proceed in
forma pauperis and order a limited remand directing the district
court to promptly docket Scharr’s October 17th correspondence as
a Rule 59(e) motion and to consider the motion on its merits.
If either party is dissatisfied after the district court
disposes of the Rule 59(e) motion, any appeal from the district
court’s final order will be consolidated with this appeal.
Regardless of the outcome of the Rule 59(e) motion, the record,
as supplemented, will be returned to this court for further
consideration.
In ordering this remand, we express no opinion as to the
merits of the Rule 59(e) motion. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
REMANDED
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