Anthony Jones v. Mildred Avalos, No. 15-7259 (4th Cir. 2015)
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The court issued a subsequent related opinion or order on July 28, 2016.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7259 ANTHONY D. JONES, Plaintiff - Appellant, v. MILDRED AVALOS; HAWKINS, SUPERINTENDENT JOYCE KORNEGAY; JOHNNY Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:14-ct-03272-BO) Submitted: December 17, 2015 Decided: December 22, 2015 Before DIAZ and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Remanded by unpublished per curiam opinion. Anthony Darnell Jones, Appellant Pro Se. Assistant Attorney General, Raleigh, Appellees. Yvonne Bulluck Ricci, North Carolina, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Anthony Darnell Jones appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2012) complaint under 28 U.S.C. § 1915(e)(2)(B) (2012). 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). timely filing of a notice of jurisdictional requirement.” appeal in a civil “[T]he case is a Bowles v. Russell, 551 U.S. 205, 214 (2007). The district court entered its order on June 16, 2015. Jones thereafter submitted a motion for an extension of time to file a notice of appeal and a notice of appeal. Those documents are considered filed on the date they were properly delivered to prison officials for mailing to the court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988). The record, however, does not conclusively reveal when Jones delivered the motion and notice to prison officials for mailing. The court’s order denying Jones’ motion for an extension of time to file a notice of appeal is also unclear. The court states that the notice of appeal was timely filed and denies Jones’ motion for that reason. It is not readily apparent from the record that Jones’ notice of appeal was timely filed. 2 If, on remand, the court concludes that Jones did not timely file his notice of appeal, it must again assess and rule on Jones’ motion for an extension of time. Accordingly, we remand the case for the limited purpose of allowing the district court to determine the date on which Jones delivered the motion for an extension of time and notice of appeal to prison officials for mailing to the court and, if the court finds the notice untimely, to rule on Jones’ motion for an extension of time. The record, as supplemented, will then be returned to this court for further consideration. REMANDED 3
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