Tate v. Hart

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-7919

LACY JERVAY TATE,

Plaintiff - Appellant,

versus

JOHNATHON A. HART; DEBRORAH CROWDER,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:06-ct-03067-H)

Submitted: April 11, 2007 Decided: May 25, 2007

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Remanded by unpublished per curiam opinion.

Lacy Jervay Tate, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Lacy Jervay Tate, a North Carolina pre-trial detainee,

seeks to appeal the district court’s order dismissing his 42 U.S.C.

§ 1983 (2000) action without prejudice. The notice of appeal was

received in the district court shortly after the expiration of the

appeal period. Because Tate 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 (1988). The record does not

conclusively reveal when Tate 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

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