UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6144
ANTONIO RENALDO JACKSON-BEY,
Plaintiff - Appellant,
versus
CORRECTIONAL MEDICAL SERVICES,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-
03-1790-8-PJM)
Submitted: May 26, 2004 Decided: July 19, 2004
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Remanded by unpublished per curiam opinion.
Antonio Renaldo Jackson-Bey, Appellant Pro Se. Philip Melton
Andrews, KRAMON & GRAHAM, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Antonio Renaldo Jackson-Bey, a Maryland prisoner, appeals
the district court’s order denying his 42 U.S.C. § 1983 (2000)
complaint. We remand this case to the district court for further
fact finding.
Federal Rule of Appellate Procedure 3 conditions federal
appellate jurisdiction on the filing of a timely notice of appeal.
Fed. R. App. P. 4(a) states that a party in a civil action must
file an appeal within thirty days of the entry of judgment. It is
well-settled that compliance with Rule 4(a) is mandatory and
jurisdictional. Browder v. Director, Dep't of Corr., 434 U.S. 257,
267 (1978). Rule 4(a)(4) states that when a party has filed a
motion under Federal Rule of Civil Procedure 60 within ten days of
the entry of the judgment, the thirty-day period does not begin to
run until the entry of the judgment disposing of the Rule 60
motion. Rule 4(a)(5) allows a party to move for an extension of
time to file a notice of appeal where the party so moves no later
than thirty days after the time prescribed by Rule 4(a) expires and
where the party shows excusable neglect or good cause.
The record in this case does not clearly reflect when
Jackson-Bey filed his Rule 60 motion. While he dated the motion
October 13, 2003, the district court did not file the motion until
October 30, 2003. Hence, we cannot glean from the record whether
Jackson-Bey’s motion for reconsideration is properly construed as
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a motion filed under Fed. R. Civ. P. 59, which would toll the
period for appealing the underlying judgment, or as a motion under
Rule 60, which would not toll the appeal period. See In re
Burnley, 988 F.2d 1, 2-3 (4th Cir. 1992).
Nor can we discern whether Jackson-Bey timely appealed
from the court’s order denying reconsideration. The district
court’s judgment denying Jackson-Bey’s motion for reconsideration
was entered November 20, 2003. The thirty-day appeal period
expired December 22, 2003. See Fed. R. App. P. 26 (instructing
that the last day of the period is not counted when it is a
Saturday). Jackson-Bey’s notice of appeal was dated December 17,
2003, but was not entered until January 13, 2004, within thirty
days after the expiration of the thirty day period. Pursuant to
Houston v. Lack, 487 U.S. 266 (1988), Jackson-Bey’s pleadings were
filed when placed in the prison’s internal mail system. Depending
on when this occurred, Jackson-Bey may have filed a Rule 59 or 60
motion, and may or may not have timely appealed from the orders
denying relief and denying reconsideration. Moreover, we note that
the district court construed Jackson-Bey’s notice of appeal as a
motion for extension of time, but did not ultimately resolve that
motion.
In light of the foregoing uncertainty regarding the
timeliness of Jackson-Bey’s motion for reconsideration and appeal
from the denial of that motion, we remand the case to the district
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court for appropriate fact finding. In so doing, we emphasize
that, in order to establish the timeliness of his notice of appeal,
the appellant must comply with Fed. R. App. P. 4(c)(1).* We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
REMANDED
*
Fed. R. App. P. 4(c)(1) provides, as follows:
If an inmate confined in an institution files a notice of
appeal in either a civil or a criminal case, the notice
is timely if it is deposited in the institution’s
internal mail system on or before the last day for
filing. If an institution has a system designed for
legal mail, the inmate must use that system to receive
the benefit of this rule. Timely filing may be shown by
a declaration in compliance with 28 U.S.C. § 1746 or by
a notarized statement, either of which must set forth the
date of deposit and state that first-class postage has
been paid.
(emphasis added).
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