UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6080
ALLAN A. PETERSON,
Plaintiff - Appellant,
v.
BRIAN PRICE; MICHELLE SPEARS; DOMINIC GUTIERREZ; SUSAN
MCCLINTOCK; MAVIS HOLYFIELD,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:06-cv-00106-FPS-JSK)
Submitted: April 16, 2009 Decided: May 15, 2009
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Allan A. Peterson, Appellant Pro Se. Betsy C. Jividen,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allan A. Peterson seeks to appeal the district court’s
order adopting the magistrate judge’s report and recommendation
and dismissing his complaint. The notice of appeal was received
in the district court shortly after expiration of the appeal
period. Because Peterson 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 reveal when Peterson gave the notice of appeal to prison
officials for mailing. We previously remanded this case to the
district court for the limited purpose of allowing the district
court to obtain this information from the parties and to
determine whether the filing was timely.
When the parties did not respond with the requested
information by the deadline established by the district court,
the court found that Peterson had failed to satisfy his burden
of proof as to the issue of timeliness. Peterson subsequently
filed a notice to this court and the district court that he did
not receive the district court’s order directing him to file a
pleading addressing the timeliness of his appeal, and providing
the requested information. The district court has not addressed
Peterson’s notice. Accordingly, we again remand the case for
the limited purpose of allowing the district court to consider
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Peterson’s notice and determine whether the notice of appeal 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
*
By this disposition, we indicate no view as to whether
Peterson’s notice of appeal was timely, leaving that
determination to be made in the first instance by the district
court.
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