Deandre Johnson v. Sally Yeckley ( 2023 )

USCA4 Appeal: 21-6810 Doc: 14 Filed: 10/06/2022 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6810
DEANDRE JOHNSON,
Plaintiff - Appellant,
v.
SALLY YECKLEY; KEVIN HUDSON, Superintendent,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:20-cv-00770-HEH-EWH)
Submitted: August 30, 2022 Decided: October 6, 2022
Before HARRIS and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Remanded by unpublished per curiam opinion.
Deandre Johnson, Appellant Pro Se. Alexander Francuzenko, COOK CRAIG &
FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-6810 Doc: 14 Filed: 10/06/2022 Pg: 2 of 3
PER CURIAM:
Deandre Johnson, a Virginia inmate, seeks to appeal the district court’s order
dismissing his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A. ∗ We
order a limited remand.
Parties are accorded 30 days after the entry of the district court’s final judgment or
order to note an appeal, Fed. R. App. P. 4(a)(1)(A), unless the district court extends the
appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R.
App. P. 4(a)(6). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional
requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). An inmate’s notice of appeal
is considered filed as of the date it was delivered to prison officials for mailing to the court.
See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).
The district court entered its dismissal order on January 26, 2021. The record does
not conclusively establish when Johnson gave a notice of appeal to prison officials for
mailing. On April 21, 2021, this court received correspondence from Johnson claiming
that he had timely filed his notice of appeal on or about February 9, 2021, by giving it to
prison authorities for mailing to this court on that date. See Fed. R. App. P. 4(d); Saxon v.
Lashbrook, 873 F.3d 982, 986-87 (7th Cir. 2017). Johnson’s informal brief similarly
provided a sworn declaration advising that he had deposited his notice of appeal with prison
∗
Although the district court dismissed the complaint in part without prejudice, we
conclude that the dismissal order is final and appealable. See Britt v. DeJoy, __ F.4th __,
__, No. 20-1620, 2022 WL 3590436, at *1 (4th Cir. Aug. 17, 2022) (en banc) (published
order).
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USCA4 Appeal: 21-6810 Doc: 14 Filed: 10/06/2022 Pg: 3 of 3
officials on February 5, 2021. Because the April 2021 correspondence evidenced an intent
to appeal, we construed it as a notice of appeal and forwarded it to the district court for
filing. However, the correspondence was deposited with prison officials, at the earliest, on
April 19, 2021, and no earlier notice of appeal appears either in this court’s records or on
the district court’s docket.
Accordingly, we remand this case for the limited purpose of allowing the district
court to determine whether Johnson filed a timely notice of appeal under Rule 4(c)(1) and
Houston. The record, as supplemented, will then be returned to this court for further
consideration.
REMANDED
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