Montgomery v. ConMed, Inc.

646 F. App'x 311

Opinion

Remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

David Michael Montgomery seeks to appeal the district court’s order denying relief on his 42 U.S.C. § 1983 (2012) complaint. The notice of appeal was received in the district court shortly after expiration of the appeal period. Because Montgomery is incarcerated, the notice is considered filed as of the date it was 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). The record does not reveal when Montgomery gave the notice of appeal 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 Fed. R.App. P. 4(c)(1) and Houston v. Lack. The record, as supplemented, will then be returned to this court for further consideration.

REMANDED.