Steven Leon Banks v. Vincent Myron Gore


OPINION/ORDER DIRECTING LIMITED REMAND [4CCA retains jurisdiction]. Originating case number: 1:14-cv-00205-CMH-JFA Copies to all parties and the district court/agency. Mailed to: Steven Leon Banks GREENSVILLE CORRECTIONAL CENTER 901 Corrections Way Route 1, Box 205 Jarratt, VA 23870-9614. [1000027764] [16-7512]

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Appeal: 16-7512 Doc: 18 Filed: 02/22/2017 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7512 STEVEN LEON BANKS, Plaintiff - Appellant, v. VINCENT MYRON GORE, Head – Physician; A. SMITH, Nurse; NURSE KEYS, Defendants – Appellees, and NURSE GOODE; DR. ABAGUTTA; NURSE GRIFFITH; CARE; PTX DIALYSIS, Dialysis – Provider, ARMOR HEALTH Defendants. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:14-cv-00205-CMH-JFA) Submitted: February 16, 2017 Before GREGORY, Chief Judge, HAMILTON, Senior Circuit Judge. Decided: DUNCAN, Remanded by unpublished per curiam opinion. February 22, 2017 Circuit Judge, and Appeal: 16-7512 Doc: 18 Filed: 02/22/2017 Pg: 2 of 4 Steven Leon Banks, Appellant Pro Se. Elizabeth Martin Muldowney, RAWLS, MCNELIS & MITCHELL, PC, Richmond, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 16-7512 Doc: 18 Filed: 02/22/2017 Pg: 3 of 4 PER CURIAM: Steven Leon Banks seeks to appeal the district court’s order denying what the district court construed as a motion for reconsideration judgment. of its order granting Defendants summary Parties are accorded thirty days after the entry of the district court’s final judgment or order to note an appeal. Fed. R. App. P. 4(a)(1)(A). The district court may, however, extend the time for filing a notice of appeal if a party so moves within thirty days after expiration of the original appeal period and demonstrates excusable neglect or good cause for the extension. Fed. R. App. P. 4(a)(5)(A)(i)-(ii); Washington v. Bumgarner, 882 F.2d 899, 900–01 (4th Cir. 1989). The district court’s order denying Banks’ motion for reconsideration was entered on the docket on September 21, 2016. Thus, Banks had until October 21, 2016, to file a notice of appeal. Banks’ notice of appeal was filed, at the earliest, on October 24, 2016. * beyond the Because Banks’ notice of appeal was filed expiration of the appeal period, but within the thirty-day excusable neglect period, we construe Banks’ filing as a timely request for an extension of time to file an appeal. * See 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). 3 Appeal: 16-7512 Doc: 18 Filed: 02/22/2017 Pg: 4 of 4 Accordingly, we remand this case to the district court for the limited purpose of determining whether Banks has demonstrated excusable neglect or good cause warranting an extension of the appeal period. The record, as supplemented, will then be returned to this court for further consideration. REMANDED 4

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