Clarence Miller v. Kimberly Garvin
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.  [16-6604]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Plaintiff – Appellant,
SGT KIMBERLY GARVIN, a/k/a Kimberly Garvin; DHO MR. ERNEST
Defendants – Appellees,
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
October 13, 2016
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Remanded by unpublished per curiam opinion.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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Unpublished opinions are not binding precedent in this circuit.
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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
incarcerated, the notice is considered filed as of the date it
was properly delivered to prison officials for mailing to the
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
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.
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