Wallace R. Baldwin, Plaintiff-appellant, v. James H. Hawkins, M.d., Defendant-appellee, 812 F.2d 1400 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 812 F.2d 1400 (4th Cir. 1987) Submitted Feb. 5, 1987. Decided Feb. 25, 1987

Before RUSSELL and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Wallace R. Baldwin, appellant pro se.

William McBlief, Womble, Carlyle, Sandridge & Rice; Rickey L. Moorefield, Alamance County Attorney, for appellee.

PER CURIAM:


Judgment in this case was entered on Thursday, July 24, 1986. The 30-day period in which Baldwin should have noted his appeal, Fed. R. App. P. 4(a) (1), began to run on July 25, Fed. R. App. P. 26(a). Because the thirtieth day fell on a Saturday, the 30-day period is extended to Monday, August 26, "the next day which is not [a Saturday, Sunday or legal holiday]." Fed. R. App. P. 26(a). No notice of appeal was filed on or before August 26.

On September 24, 1986, the district court received a written inquiry about the status of the case. Baldwin's notice of appeal was filed on September 29, 1986.

The district court correctly construed the September 24 inquiry as a motion for extension of time in which to note an appeal. Since the 30-day period for filing such a motion, see Fed. R. App. P. 4(a) (5), began to run on Tuesday, August 27, see Fed. R. App. P. 26(a), the September 24 motion was timely filed. Under our decision in Meyers v. Stephenson, 781 F.2d 1036 (4th Cir. 1986), the case must be remanded to the district court for a determination of excusable neglect or good cause justifying Baldwin's late filing of the notice of appeal. The motion to dismiss the appeal is denied. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument. Leave to proceed in forma pauperis is granted.

REMANDED.