Antoine China v. Lt. Marskberry, No. 14-7674 (4th Cir. 2015)
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The court issued a subsequent related opinion or order on December 30, 2015.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7674 ANTOINE J. CHINA, Plaintiff - Appellant, v. LT. MARSKBERRY; MAJOR NETTLES; WILLIAM R. BYARS, JR., Director, WARDEN FRED B. THOMPSON; Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. J. Michelle Childs, District Judge. (5:13-cv-00091-JMC) Submitted: February 12, 2015 Decided: February 19, 2015 Before MOTZ, WYNN, and FLOYD, Circuit Judges. Remanded by unpublished per curiam opinion. Antoine J. China, Appellant Pro Se. Hugh Willcox Buyck, Gordon Wade Cooper, BUYCK, SANDERS & SIMMONS, Charleston, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antoine J. China — a South Carolina prisoner — seeks to appeal the recommendation judgment to district of the magistrate Defendants rights action. court’s in his 42 order judge and U.S.C. accepting granting § 1983 the summary (2012) civil Appellees move to dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. China has filed a response to the motion to dismiss. After review of the record and the parties’ submissions, we remand to the district court. The district court entered judgment on September 4, 2014, and the document the district court clerk docketed as a notice of appeal was received in the district court on November 10, 2014, after the expiration of the appeal period. In that document, China claims that, on September 10, 2014, he filed an affidavit in the district court requesting that he be granted an appeal. appeal, China affidavit In his response to the motion to dismiss the reiterates requesting an his contention appeal on that September he filed the 10, 2014 and proffers a document from the state department of corrections he claims supports his contention appeal in a timely manner. that he filed his notice of No such affidavit, however, appears on the district court’s docket. 2 Accordingly, we defer action on the motion to dismiss and remand purposes the of case to allowing the that district court to court for determine the limited whether China timely noticed an appeal from the September 4 order by properly delivering a notice to prison officials for mailing to the court, see Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266, 276 (1988), requirements and, of if Fed. extension or States v. Feuver, not, R. reopening 236 whether App. of F.3d P. the 725, China 4(a)(5) appeal 729 can or (a)(6) period. n.7 satisfy (D.C. for the an See United Cir. 2001); Ogden v. San Juan Cnty., 32 F.3d 452, 454 (10th Cir. 1994). The record, as supplemented, will then be returned to this court for further consideration. REMANDED 3
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