UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6164
KENNETH WILLIAM RAY, II,
Plaintiff - Appellant,
v.
JOE DRIVER, Rec Officer; HAROLD BOYLES; MICHELLE T.
FUSEYAMORE, Regional Counsel,
Defendants – Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:10-cv-00009-JPB-JSK)
Submitted: May 26, 2011 Decided: June 1, 2011
Before KING, SHEDD, and DIAZ, Circuit Judges.
Remanded by unpublished per curiam opinion.
Kenneth William Ray, II, Appellant Pro Se. Alan McGonigal,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth William Ray, II, seeks to appeal the district
court’s order adopting the magistrate judge’s report and
recommendation, granting Appellees’ motion for summary judgment,
and dismissing Ray’s complaint. The notice of appeal was
received in the district court shortly after expiration of the
appeal period. Because Ray 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 Ray 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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