UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7066
EARL THOMAS, III,
Plaintiff - Appellant,
versus
CAPTAIN CROSBY; LIEUTENANT GENEAU,
Defendants - Appellees,
and
RICHMOND CITY JAIL; SHERIFF MITCHELL; MAJOR
MINION; LIEUTENANT MCCRAY; LIEUTENANT HALL;
ANY AND ALL OTHER DEPUTIES ALSO INVOLVED,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Chief
District Judge. (CA-02-1685-1)
Submitted: November 17, 2004 Decided: December 10, 2004
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Remanded by unpublished per curiam opinion.
Earl Thomas, III, Appellant Pro Se. John Adrian Gibney, Jr.,
THOMPSON & MCMULLAN, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Earl Thomas, III, seeks to appeal from the district
court’s order denying relief on his 42 U.S.C. § 1983 (2000)
complaint. The district court dismissed Thomas’ complaint in an
order entered on March 16, 2004. Thomas’ notice of appeal was
filed in the district court on June 22, 2004. In that notice of
appeal, Thomas stated he did not receive notice of the district
court’s March 16, 2004 order until June 7, 2004, and he sought to
appeal from that order. Because Thomas’ notice of appeal asserted
that he did not timely receive notice of the district court’s order
and also expressed his desire to preserve his appeal, his notice of
appeal should be construed as a request to reopen the appeal period
under Fed. R. App. P. 4(a)(6). See Myers v. Stephenson, 781 F.2d
1036, 1038-39 (4th Cir. 1986).
Pursuant to Houston v. Lack, 487 U.S. 266 (1988), a document
is considered filed when delivered to prison officials for mailing
to the court. Because Thomas’ request to reopen the appeal period
was filed in the district court shortly after the expiration of the
seven-day period for filing such a request and the record does not
reveal when Thomas gave the document to prison officials, we remand
the case to the district court for the limited purpose of
determining whether Thomas’ request to reopen the appeal period was
timely filed under Fed. R. App. P. 4(a)(6)(A). If so, the district
court should then consider whether to reopen the appeal period.
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The record, as supplemented, then will be returned to this court
for further consideration.
REMANDED
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