Charles Thomas v. South Carolina Dep't of Corrections

590 F. App'x 289

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 27, 2015
• Docket: 14-7551
• Status: Unpublished

Opinion

Remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Charles Edward Thomas seeks to appeal the district court’s order adopting the magistrate judge’s recommendation to dismiss, after a 28 U.S.C. § 1915 (2012) review, his complaint alleging Defendants violated his constitutional, federal and state law rights. Parties are accorded thirty-days after the entry of the district court’s final judgment or order to note an appeal, Fed. R.App. P. 4(a)(1)(A), unless the district court extends the appeal period under Fed. R.App. P. 4(a)(5), or reopens the appeal period under Fed. R.App. P. 4(a)(6). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2860, 168 L.Ed.2d 96 (2007).

The district court entered its judgment dismissing Thomas’s action on May 28, 2014. However, Thomas did not file what was construed as a notice of appeal until October 19, 2014, * in which he inquires about the status of his objections to the magistrate judge’s report and recommendation. Because Thomas suggests that he did not receive the district court’s order adopting the magistrate judge’s recommendation, and since his inquiry into the status of his objections to that recommendation was made within 180 days of the entry of the district court’s entry adopting the recommendation, we construe Thomas’s October 19, 2014 filing as a motion to reopen the time to appeal under Rule 4(a)(6). See United States v. Feuver, 236 F.3d 725, 729 n. 7 (D.C.Cir.2001). Accordingly, we remand the case to the district court for the court to determine whether Thomas can satisfy the requirements of Rule 4(a)(6). See 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.

* For purposes of this appeal, we assume that the date appearing on Thomas’s filing is the earliest date it could have been properly delivered to prison officials for mailing to the court. Fed. R.App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).