Hammar v. Erman

123 F. App'x 568

Opinion

PER CURIAM:

Harry Richard Hammar, III, seeks to appeal from the district court’s order dismissing his complaint filed pursuant to 42 U.S.C. § 1983 (2000). The district court dismissed Hammar’s complaint by an order entered on July 14, 2004. On September 9, 2004, the district court received a motion, which Hammar originally filed in the Court of Appeals for the Fourth Circuit and which was forwarded to the district court.

In this motion, Hammar asserted that he failed to timely note an appeal because he did not know in which court to file his notice. The district court construed this motion as one to reopen the appeal period under Fed. R.App. P. 4(a)(6), and denied it. Because Hammar’s motion was received within thirty days after the expiration of the appeal period and sought an extension of time to note an appeal, this motion constituted a motion for an extension of the appeal period under Fed. R.App. P. 4(a)(5), rather than a motion to reopen the appeal period. Accordingly, we remand this case to the district court for the limited purpose of permitting that court to determine whether Hammar has shown excusable neglect or good cause warranting an extension of time for filing a notice of appeal. The record, as supplemented, then will be returned to this court for further consideration.

REMANDED