Garcia v. Shufford , 109 F. App'x 625 ( 2004 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-7053
    VENTURA GARCIA,
    Plaintiff - Appellant,
    versus
    JOHNNIE SHUFFORD,    ex-officer   at   McDowell
    County Jail,
    Defendant - Appellee.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Asheville. Graham C. Mullen, Chief
    District Judge. (CA-02-275)
    Submitted:   September 8, 2004         Decided:   September 28, 2004
    Before WILKINSON, LUTTIG, and TRAXLER, Circuit Judges.
    Remanded by unpublished per curiam opinion.
    Ventura Garcia, Appellant Pro Se.       Johnnie Shufford, Appellee
    Pro Se.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Ventura Garcia seeks to appeal from the district court’s
    order entering judgment in his favor in his action filed pursuant
    to 
    42 U.S.C. § 1983
     (2000).   The notice of appeal in this case was
    received in the district court after expiration of the appeal
    period.   However, Garcia dated his notice of appeal prior to the
    expiration of the appeal period.   Under Houston v. Lack, 
    487 U.S. 266
    , 276 (1988), the notice is considered filed as of the date
    Garcia delivered it to prison officials for forwarding to the
    court.    Because the record does not reveal when Garcia delivered
    his notice of appeal to prison authorities, we cannot determine
    whether the notice of appeal is timely.
    The record is similarly unclear as to the date Garcia
    filed his motion for reconsideration of the court’s order.   Under
    Houston v. Lack, the motion to reconsider also is deemed filed as
    of the date the petitioner delivered it to prison officials for
    mailing to the court.   See United States v. Duke, 
    50 F.3d 571
    , 575
    (8th Cir. 1995).     Although Garcia’s motion to reconsider was
    received by the district court clerk more than one month after the
    district court’s entry of judgment, the date on the motion is
    within ten days following entry of the district court’s decision.
    See Fed. R. Civ. P. 6(a) (computation of time).    The date Garcia
    delivered the motion to reconsider to prison officials must be
    ascertained by the district court because the timing of the filing
    - 2 -
    of that motion determines whether it is properly considered under
    Fed R. Civ. P. 59(e) or Fed. R. Civ. P. 60(b).   See In re Burnley,
    
    988 F.2d 1
     (4th Cir. 1992).   Accordingly, we remand the case for
    the district court to determine the timeliness of the filing of the
    notice of appeal under Houston v. Lack.     In the event that the
    court concludes that Garcia’s notice of appeal was timely filed, it
    must then determine whether Garcia’s motion to reconsider was
    delivered to prison officials for mailing no later than the tenth
    day following the entry of the court’s April 27, 2004 order.   The
    record, as supplemented, will then be returned to this court for
    further consideration.
    REMANDED
    - 3 -
    

Document Info

Docket Number: 04-7053

Citation Numbers: 109 F. App'x 625

Judges: Luttig, Per Curiam, Traxler, Wilkinson

Filed Date: 9/28/2004

Precedential Status: Non-Precedential

Modified Date: 8/6/2023