Steven Lee Scharr v. Stephanie Hollembeak

Filing

OPINION/ORDER DIRECTING LIMITED REMAND [4CCA retains jurisdiction]. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999957454-2] Originating case number: 5:16-hc-02025-BO. Copies to all parties and the district court/agency. Mailed to: Steven Lee Scharr FMC BUTNER FEDERAL MEDICAL CENTER P. O. Box 1600 Butner, NC 27509-0000. [1000016518] [16-7433]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7433

STEVEN LEE SCHARR,
Petitioner - Appellant,
v.
STEPHANIE HOLLEMBEAK,
Respondent – Appellee,
and
UNITED STATES OF AMERICA,
Respondent.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:16-hc-02025-BO)

Submitted:

January 31, 2017

Decided:

February 3, 2017

Before WILKINSON, KEENAN, and THACKER, Circuit Judges.

Remanded by unpublished per curiam opinion.

Steven Lee Scharr, Appellant Pro Se.
Christina Ann
BUREAU OF PRISONS, Butner, North Carolina, for Appellee.

Kelley,

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pending

before

the

court

is

the

district

court’s

order

granting what it construed as Steven Lee Scharr’s Fed. R. Civ.
P. 41 motion to voluntarily dismiss Scharr’s 28 U.S.C. § 2241
(2012) petition, as well as Scharr’s application to proceed in
forma pauperis.

After the district court dismissed the § 2241

petition, Scharr filed a letter on October 17, 2016, * explaining
that he did not want to dismiss his § 2241 petition (October
17th correspondence).

The district court construed the October

17th correspondence, which was filed only ten days after the
district

court

dismissed

Scharr’s

petition,

as

a

notice

of

appeal.
In light of Scharr’s assertion that he did not intend to
voluntarily

dismiss

his

§ 2241

petition,

the

district

court

should have construed the October 17th correspondence as a Fed.
R. Civ. P. 59(e) motion for reconsideration of the dismissal
order.

See Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978)

(holding, under a prior version of Rule 59(e), that “if a postjudgment

motion

is

filed

judgment

and

calls

into

within
question

ten

*

days

the

of

the

correctness

entry
of

of

that

Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that a
pro se prisoner’s notice of appeal is considered filed when it
is delivered to prison authorities for mailing to the court).

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judgment it should be treated as a motion under Rule 59(e),
however it may be formally styled”).
Accordingly, we grant Scharr’s application to proceed in
forma pauperis and order a limited remand directing the district
court to promptly docket Scharr’s October 17th correspondence as
a Rule 59(e) motion and to consider the motion on its merits.
If

either

party

is

dissatisfied

after

the

district

court

disposes of the Rule 59(e) motion, any appeal from the district
court’s

final

order

will

be

consolidated

with

this

appeal.

Regardless of the outcome of the Rule 59(e) motion, the record,
as

supplemented,

will

be

returned

to

this

court

for

further

consideration.
In ordering this remand, we express no opinion as to the
merits of the Rule 59(e) motion.

We dispense with oral argument

because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
REMANDED

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