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United States Court of Appeals, Fourth Circuit.

George GRAVES, Plaintiff - Appellant, v. WESTFORD HEALTH SERVICE; Yonas Sisay, MD, Defendants - Appellees.

No. 20-6076

Decided: March 17, 2020

Before KING, KEENAN, and FLOYD, Circuit Judges. George Graves, Appellant Pro Se. Douglas Conrad Meister, Gina Marie Smith, MEYERS, RODBELL & ROSENBAUM, PA, Riverdale Park, Maryland, for Appellees.

George Graves, a Maryland prisoner, seeks to appeal the district court's order granting summary judgment in favor of Defendants on his 42 U.S.C. § 1983 (2018) complaint. The district court entered the order on July 17, 2019. Graves filed his notice of appeal, at the latest, on January 6, 2020. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (establishing prison mailbox rule). Graves’ notice of appeal is clearly untimely. See Fed. R. App. P. 4(a)(1)(A). Graves, however, claimed that he never received a copy of the district court's order, and there is some evidence in the record supporting this assertion.

Pursuant to Fed. R. App. P. 4(a)(6), the district court may reopen the time to file an appeal for a 14-day period if: (1) the movant did not receive proper notice of the entry of the judgment within 21 days after entry; (2) the motion to reopen the appeal period is filed within 180 days after the order is entered or within 14 days after the movant receives proper notice of the entry, whichever is earlier; and (3) no party would be prejudiced. Fed. R. App. P. 4(a)(6); see Fed. R. Civ. P. 77(d). Because Graves claimed that he never received a copy of the court's order, and he filed the notice of appeal within 180 days after entry of the order, we construe the notice of appeal as a motion to reopen the appeal period under Rule 4(a)(6). We remand to the district court to determine whether the appeal period should be reopened.* The record, as supplemented, will be returned to this court for further consideration.



FOOTNOTE.   If the district court determines that Graves has not received a copy of the order, it should mail him a copy promptly.


Remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.

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