Antoine China v. Lt. Marskberry , 593 F. App'x 248 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7674
ANTOINE J. CHINA,
Plaintiff - Appellant,
v.
LT. MARSKBERRY; MAJOR NETTLES; WARDEN FRED B. THOMPSON;
WILLIAM R. BYARS, JR., Director,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. J. Michelle Childs, District
Judge. (5:13-cv-00091-JMC)
Submitted: February 12, 2015 Decided: February 19, 2015
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Antoine J. China, Appellant Pro Se. Hugh Willcox Buyck, Gordon
Wade Cooper, BUYCK, SANDERS & SIMMONS, Charleston, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antoine J. China — a South Carolina prisoner — seeks
to appeal the district court’s order accepting the
recommendation of the magistrate judge and granting summary
judgment to Defendants in his 42 U.S.C. § 1983 (2012) civil
rights action. Appellees move to dismiss the appeal for lack of
jurisdiction because the notice of appeal was not timely filed.
China has filed a response to the motion to dismiss. After
review of the record and the parties’ submissions, we remand to
the district court.
The district court entered judgment on September 4,
2014, and the document the district court clerk docketed as a
notice of appeal was received in the district court on
November 10, 2014, after the expiration of the appeal period.
In that document, China claims that, on September 10, 2014, he
filed an affidavit in the district court requesting that he be
granted an appeal. In his response to the motion to dismiss the
appeal, China reiterates his contention that he filed the
affidavit requesting an appeal on September 10, 2014 and
proffers a document from the state department of corrections he
claims supports his contention that he filed his notice of
appeal in a timely manner. No such affidavit, however, appears
on the district court’s docket.
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Accordingly, we defer action on the motion to dismiss
and remand the case to the district court for the limited
purposes of allowing that court to determine whether China
timely noticed an appeal from the September 4 order by properly
delivering a notice to prison officials for mailing to the
court, see Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266,
276 (1988), and, if not, whether China can satisfy the
requirements of Fed. R. App. P. 4(a)(5) or (a)(6) for an
extension or reopening of the appeal period. See United
States v. Feuver, 236 F.3d 725, 729 n.7 (D.C. Cir. 2001);
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
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