Deandre Johnson v. Sally Yeckley

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 7, 2023
• Docket: 21-6810
• Status: Unpublished

Opinion

USCA4 Appeal: 21-6810 Doc: 14 Filed: 10/06/2022 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6810

DEANDRE JOHNSON,

Plaintiff - Appellant,

v.

SALLY YECKLEY; KEVIN HUDSON, Superintendent,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:20-cv-00770-HEH-EWH)

Submitted: August 30, 2022 Decided: October 6, 2022

Before HARRIS and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Remanded by unpublished per curiam opinion.

Deandre Johnson, Appellant Pro Se. Alexander Francuzenko, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-6810 Doc: 14 Filed: 10/06/2022 Pg: 2 of 3

PER CURIAM:

Deandre Johnson, a Virginia inmate, seeks to appeal the district court’s order

dismissing his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A. ∗ We

order a limited remand.

Parties are accorded 30 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 (2007). An inmate’s notice of appeal

is considered filed as of the date it was delivered to prison officials for mailing to the court.

See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).

The district court entered its dismissal order on January 26, 2021. The record does

not conclusively establish when Johnson gave a notice of appeal to prison officials for

mailing. On April 21, 2021, this court received correspondence from Johnson claiming

that he had timely filed his notice of appeal on or about February 9, 2021, by giving it to

prison authorities for mailing to this court on that date. See Fed. R. App. P. 4(d); Saxon v.

Lashbrook, 873 F.3d 982, 986-87 (7th Cir. 2017). Johnson’s informal brief similarly

provided a sworn declaration advising that he had deposited his notice of appeal with prison

∗ Although the district court dismissed the complaint in part without prejudice, we conclude that the dismissal order is final and appealable. See Britt v. DeJoy, __ F.4th __, __, No. 20-1620, 2022 WL 3590436, at *1 (4th Cir. Aug. 17, 2022) (en banc) (published order).

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officials on February 5, 2021. Because the April 2021 correspondence evidenced an intent

to appeal, we construed it as a notice of appeal and forwarded it to the district court for

filing. However, the correspondence was deposited with prison officials, at the earliest, on

April 19, 2021, and no earlier notice of appeal appears either in this court’s records or on

the district court’s docket.

Accordingly, we remand this case for the limited purpose of allowing the district

court to determine whether Johnson filed a timely notice of appeal under Rule 4(c)(1) and

Houston. The record, as supplemented, will then be returned to this court for further

consideration.

REMANDED