Crank v. Durant

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6367
JEFFREY S. CRANK,
Plaintiff - Appellant,
versus
LIEUTENANT DURANT, Kershaw Correctional
Institution; CORRECTIONAL OFFICER COX, Kershaw
Correctional Institution; CORRECTIONAL OFFICER
PITTMAN, Kershaw Correctional Institution,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. David C. Norton, District Judge.
(CA-04-1471-DCN)
Submitted: August 17, 2005 Decided: February 9, 2006
Before LUTTIG, WILLIAMS, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jeffrey S. Crank, Appellant Pro Se. Ruskin C. Foster, L. Susan
Foxworth, Matthew Penn Engen, MCCUTCHEN, BLANTON, JOHNSON &
BARNETTE, LLP, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jeffrey S. Crank appeals from the district court’s order
adopting the recommendation of the magistrate judge and dismissing
Crank’s 42 U.S.C. § 1983 (2000) complaint as frivolous under 28
U.S.C. § 1915A (2000). Although we express no opinion regarding
the merits of Crank’s suit, we vacate the district court’s order
and remand for further proceedings.
The magistrate judge’s recommendation was entered on
December 29, 2004. On January 24, 2005, Crank filed a motion for
extension of time in which to file objections. The motion was
executed on January 10, stamped by prison officials on January 20,
and postmarked January 21. The district court denied the motion as
untimely filed and did not consider Crank’s subsequently filed
objections.
Timely objections were due by January 19. Under
Houston v. Lack, 487 U.S. 266, 276 (1988), Crank’s motion for
extension of time to object was deemed filed when he handed it to
prison officials for mailing. It is unclear from the record
whether Crank’s motion was filed prior to the expiration of the
objection period.
Thus, we vacate the district court’s order and remand for
a determination of the date Crank filed his motion to extend time.
Should the district court determine that the motion was timely
filed, it should reconsider its decision. Again, we express no
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opinion on the merits of either the motion to extend or the
underlying suit. We grant Crank’s motion to amend and deny his
motions for injunction and appointment of counsel. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
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