Rivera v. Virginia Department of Corrections , 693 F. App'x 240 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6293
DENIS RIVERA,
Plaintiff - Appellant,
v.
VIRGINIA DEPARTMENT OF CORRECTIONS; HAROLD CLARKE; DAVID
ROBINSON; G. K. WASHINGTON; RANDALL MATHENA; GREGORY
HOLLOWAY; SCOTT RICHESON; MALCOLM TAYLOR; KEITH DAWKINS;
DR. BRANE; JIM PARKS; HENRY PONTON; EARL BARKSDALE; GEORGE
HINKLE; ELIZABETH THORNTON; J. WALRATH; I. HAMILTON; T.
PURYEAR; J. ARTRIP; A. GALLIHAR; G. BAKER; MICHAEL YOUNCE;
WALTER SWINEY; TORI RAIFORD; DWAYNE TURNER; STACY DAY;
CHRISTOPHER GILBERT; JOE FANNIN; TONY ADAMS; G. A. ADAMS; K.
A. SYKES; R. KEGLEY; B. E. STALLARD; JACKSON; J. KING, former
counselor at Red Onion State Prison; A. B. DUNCAN, Unit Manager,
Defendants - Appellees,
and
EXTERNAL REVIEW TEAM; DUAL TREATMENT TEAM; UNIT MANAGER
TEAM,
Defendants.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. James P. Jones, District Judge. (7:15-cv-00156-JPJ-RSB)
Submitted: July 20, 2017 Decided: July 24, 2017
Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Remanded by unpublished per curiam opinion.
Denis Rivera, Appellant Pro Se. Richard Carson Vorhis, Senior Assistant Attorney
General, John Michael Parsons, Assistant Attorney General, Richmond, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Denis Rivera seeks to appeal the district court’s order denying relief on his
42 U.S.C. § 1983 (2012) complaint. The district court entered its order granting
summary judgment to the Defendants on December 8, 2016. Rivera filed his notice of
appeal on March 1, 2017. However, prior to filing his notice of appeal, Rivera filed a
motion pursuant to Fed. R. Civ. P. 59(e). The district court received Rivera’s motion on
January 9. In order for the Rule 59(e) motion to render Rivera’s notice of appeal timely
filed as to the underlying judgment, the motion was due on January 5. Fed. R. App. P.
4(a)(4)(A)(v). Because Rivera is incarcerated, the motion is considered filed as of the
date it was properly delivered to prison officials for mailing to the court. Houston v.
Lack, 487 U.S. 266 (1988). The record does not reveal when Rivera gave the Rule 59(e)
motion 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 Houston v. Lack. The record, as
supplemented, will then be returned to this court for further consideration.
REMANDED
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