JOHNSON v. KINCAID PFC (2019)

Michael Allen Johnson seeks to appeal the district court's order dismissing his 42 U.S.C. § 1983 (2012) action for failure to notify the court of his change of address. The district court entered its dismissal order on April 2, 2019. Affording Johnson the benefit of Fed. R. App. P. 4(c) and Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the earliest date his notice of appeal may be deemed filed is September 14, 2019, beyond both the 30-day appeal period under Fed. R. App. P. 4(a)(1)(A) and the 30-day excusable neglect period allowed under Fed. R. App. P. 4(a)(5). See Shah v. Hutto, 722 F.2d 1167, 1168 (4th Cir. 1983).

We construe Johnson's notice of appeal, which suggests that he did not timely receive notice of the dismissal of his § 1983 action, as a motion to reopen the appeal period under Fed. R. App. P. 4(a)(6). United States v. Feuver, 236 F.3d 725, 729 & n. 7 (D.C. Cir. 2001). Accordingly, we remand this case to the district court for the limited purpose of determining whether Johnson can satisfy the requirements for reopening set forth in Rule 4(a)(6).^* The record, as supplemented, will then be returned to this court for further consideration.

REMANDED

FOOTNOTES

FOOTNOTE.   We express no opinion as to whether Johnson is entitled to a reopening of the appeal period and leave that determination to the district court in the first instance.

PER CURIAM:

Remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.