Walter Augusta Whitfield v. St. Brides Correctional Center , 861 F.2d 267 ( 1988 )

861 F.2d 267
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Walter Augusta WHITFIELD, Plaintiff-Appellant,
v.
ST. BRIDES CORRECTIONAL CENTER, Defendant-Appellee.

No. 88-6639.

United States Court of Appeals, Fourth Circuit.

Submitted: July 29, 1988.
Decided: Oct. 25, 1988.

Walter Augusta Whitfield, appellant pro se.

Robert Harkness Herring, Jr., Assistant Attorney General, for appellee.

Before DONALD RUSSELL, MURNAGHAN and SPROUSE, Circuit Judges.

PER CURIAM:

1

Walter Augusta Whitfield, a Virginia prisoner, appeals the district court's dismissal of his 42 U.S.C. Sec. 1983 action. His notice of appeal is dated April 1, 1988, but it was not received by the district court until April 11, 1988, five days after the expiration of 30-day appeal period established by Fed.R.App.P. 4(a)(1).

2

In Houston v. Lack, 56 U.S.L.W. 4728 (U.S. June 24, 1988) (No. 87-5428), the Supreme Court held that a prisoner's notice of appeal is filed when he delivers it to prison officials for forwarding to the court. We cannot determine from the records before us when Whitfield gave his notice of appeal to prison authorities or other federal officials, particularly U.S. post office employees. Accordingly, we remand the case to the district court. On remand, that court will obtain this information from the parties, making any necessary evidentiary rulings. The case, as supplemented, then will be returned to this Court for further consideration.

3

We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.

4

REMANDED.