Clarence Miller v. Kimberly Garvin

Filing

OPINION/ORDER DIRECTING LIMITED REMAND [4CCA retains jurisdiction]. Originating case number: 6:15-cv-00108-TMC. Copies to all parties and the district court. Mailed to: Clarence Scott Miller. [999949133] [16-6604]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6604

CLARENCE MILLER,
Plaintiff – Appellant,
v.
SGT KIMBERLY GARVIN, a/k/a Kimberly Garvin; DHO MR. ERNEST
ROWE,
Defendants – Appellees,
and
DENNIS PATTERSON,
STEVENSON,

Region

2

Deputy

Director;

WARDEN

MR.

Defendants.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:15-cv-00108-TMC)

Submitted:

October 13, 2016

Decided:

October 18, 2016

Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.

Remanded by unpublished per curiam opinion.

Clarence Scott Miller, Appellant Pro Se. Drew Hamilton Butler,
RICHARDSON PLOWDEN, Charleston, South Carolina; Carmen Vaughn
Ganjehsani, RICHARDSON PLOWDEN, Columbia, South Carolina, for

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Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Clarence Scott Miller seeks to appeal the district court’s
order dismissing his 42 U.S.C. § 1983 (2012) motion for failure
to comply with a discovery order and for lack of prosecution.
The notice of appeal was received in the district court shortly
after

expiration

of

the

appeal

period.

Because

Miller

is

incarcerated, the notice is considered filed as of the date it
was properly delivered to prison officials for mailing to the
court.
(1988).

Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266
The record does not reveal when Miller gave the notice

of appeal to prison officials for mailing.

Although the notice

of appeal was notarized on April 22, 2016, which may render the
notice of appeal untimely, his notice of appeal also states that
he filed another notice of appeal on March 31, 2016, which would
be timely.

This alleged filing does not appear on the district

court docket sheet.

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.

REMANDED

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