Russell David, Sr. v. Jon Ozmint, (4th Cir. 2011)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6725

RUSSELL LEON DAVID, SR.,

Plaintiff - Appellant,

v.

JON E. OZMINT, Director, South Carolina Department of

Corrections; DONALD R. SAMPSON, Dr.; A. G. ALEWINE, Dr.; K.

MCCULLOUGH, Nurse; S. SHERMAN, Nurse,

Defendants - Appellees.

Appeal from the United States District Court for the District of

South Carolina, at Beaufort. R. Bryan Harwell, District Judge.

(9:10-cv-01976-RBH)

Submitted: October 20, 2011 Decided: November 3, 2011

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Remanded by unpublished per curiam opinion.

Russell Leon David, Sr., Appellant Pro Se. Mason Abram Summers,

RICHARDSON, PLOWDEN & ROBINSON, PA, Columbia, South Carolina,

for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Russell Leon David, Sr., seeks to appeal the district court's order granting summary judgment in favor of defendants on his complaint filed pursuant to 42U.S.C. § 1983 (2006). The notice of appeal was received in the district court shortly after expiration of the appeal period. Because David is incarcerated, the notice is considered filed as of the date it was properly delivered to prison officials for mailing to the court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266 (1988). The record does not clearly reveal when David gave the notice of appeal to prison officials for mailing. Accordingly, we remand the case for the limited purpose of allowing the district court to obtain this information from the parties and to determine whether the filing was timely under Fed. R. App. P.

4(c)(1) and Houston v. Lack. The record, as supplemented, will then be returned to this court for further consideration.

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