Unpublished Disposition, 914 F.2d 261 (9th Cir. 1990)
Annotate this CaseFletcher Charles CASEY, Jr., Petitioner-Appellant,v.Travis BADGETT, Chairman of disciplinary committee, DonSims, John Gutierrez, C. Goldsmith, Respondent-Appellee.
No. 89-16206.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 13, 1990.* Decided Sept. 12, 1990.
Before WALLACE, ALARCON and WIGGINS, Circuit Judges.
ORDER
Fletcher C. Casey, Jr., an incarcerated pro se, appeals the district court's dismissal of his Section 1983 action against various employees of the Arizona Department of Corrections.
Casey's notice of appeal was filed on September 7, 1989, thirty-four days after the district court entered judgment against him. Therefore, the notice appears untimely under Fed. R. App. P. 4(a) (1). However, if Casey delivered the notice of appeal to prison authorities on September 3, 1989, it is timely under the rule announced in Houston v. Lack, 108 S. Ct. 2379, 2382 (1988). See Hostler v. Groves, No. 88-2734, slip op. at 10107 (9th Cir. Aug. 30, 1990). This appears to be a possibility, as the notice is dated September 3, 1989.
In this situation, the proper course is to remand the case to the district court to determine whether Casey delivered his notice of appeal to prison authorities on September 3, 1989. See Miller v. Sumner, 872 F.2d 287, 288-89 (9th Cir. 1989) (per curiam).
REMANDED.
The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4
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