UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7517
HASSAN SHABAZZ, a/k/a R. Sydnor,
Plaintiff - Appellant,
and
ROBERT PARKER; C. FERGUSON; RICKY INGRAM; E.
HOLMES; G. SMALL; G. FLAMER; D. MCCLAIN;
DWAYNE REID; A. EBRON; A. WADDLER; M.
SANDRIDGE; C. HILLIARD; C. WILLIAMS; J.
CRUMITY; J. ORTEGA; S. RALPH; J. RONALD
JACKSON; ELTON LEE WILLIAMS; DAVID X. YOUNG;
JEROME A. WOOLFORK; KEVIN POTTS; MARK ELLIOTT;
PAUL W. MOREHEAD; BERNARD CRAWFORD,
Plaintiffs,
versus
VIRGINIA DEPARTMENT OF CORRECTIONS; GEORGE
ALLEN, III; JIM GILMORE, Former Governor of
Virginia; RON ANGELONE, Director, Virginia
Department of Corrections; GENE M. JOHNSON,
Deputy Director of Virginia Department of
Corrections; R. A. YOUNG, Regional Director,
Virginia Department of Corrections; S. K.
YOUNG, Warden, Wallens Ridge State Prison; MR.
HARVEY, Assistant Warden of Operations,
Wallens Ridge State Prison; MAJOR YATES, Chief
of Security at Wallens Ridge State Prison; C/O
LANE, Corporal, Gun Post and Floor Officer;
C/O ROBINSON, Corporal, Gun Post and Floor
Officer; C/O MEADE, Corporal, Gun Post and
Floor Officer; JOHN DOE, Corporal, Gun Post
and Floor Officer; C/O FLANARY, Corporal, Gun
Post and Floor Officer; WALLENS RIDGE MEDICAL
DEPARTMENT; WALLENS RIDGE STATE PRISON,
Psychiatric Department,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (CA-02-499-7)
Submitted: February 11, 2005 Decided: March 1, 2005
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Hassan Shabazz, Appellant Pro Se. Mark Ralph Davis, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Hassan Shabazz, a state prisoner, appeals the district
court’s order dismissing his 42 U.S.C. § 1983 (2000) action without
prejudice for failure to prosecute.
On March 13, 2002, Shabazz filed his § 1983 complaint in
the district court alleging that officers at Wallens Ridge State
Prison participated in unnecessary and inappropriate use of
firepower inside the prison. On June 16, 2004, the Defendants
filed a motion for summary judgment. Shabazz was given notice
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and
allowed twenty days to file a response. The Roseboro notice was
dated June 17, 2004; therefore, Shabazz had until July 7, 2004, to
file a response. See Fed. R. Civ. P. 6(a).
On July 6, 2004, the Defendants filed a motion to
dismiss. The district court provided Shabazz with Roseboro notice
that same day and gave him twenty days to respond to the motion to
dismiss.
The record reflects that Shabazz filed a response to both
the Defendants’ summary judgment motion and motion to dismiss.
Shabazz dated his certificate of service attached to his response
to the motion for summary judgment on July 5, 2004, which was a
federal holiday. The district court stamped Shabazz’s response as
filed on July 9, 2004. By order dated July 13, 2004, the district
court dismissed Shabazz’s § 1983 action without prejudice for
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failure to respond to the Defendants’ motion for summary judgment
within the allotted time period.
On appeal, Shabazz claims his response is timely under
Houston v. Lack, 487 U.S. 266 (1988). Under Houston v. Lack,
Shabazz’s response is deemed filed as of the time he handed it to
prison officials for mailing. Id. There is no evidence in the
record of when Shabazz relayed his response to prison officials for
mailing other than Shabazz’s own certificate of service dated July
5, 2004. However, because Shabazz prepared his response on July 5,
2004, and the response was received in the district court for
filing no later than July 9, 2004, it appears that Shabazz must
have relayed his response to prison officials for mailing no later
than the July 7, 2004 deadline. Accordingly, we vacate the
district court's order and remand to the district court to consider
Shabazz’s response to the Defendant’s summary judgment motion and
motion to dismiss. We express no opinion as to the district
court’s ultimate disposition of Shabazz’s claims. 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.
VACATED AND REMANDED
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