Opinion
No. 08-6080.
Submitted: March 27, 2008.
Decided: April 4, 2008.
Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:06-cv-00106-FPS-JSK).
Allan A. Peterson, Appellant Pro Se. Betsy S. Jividen, Assistant United States Attorney, Wheeling, West Virginia, for Appellees.
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Remanded by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Allan A. Peterson seeks to appeal the district court's order adopting the magistrate judge's report and recommendation and dismissing his complaint under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The notice of appeal was received in this court shortly after expiration of the sixty-day appeal period. Fed.R.App.P. 4(a)(1)(B). Because Peterson is incarcerated, the notice is considered filed as of the date it was properly delivered to prison officials for mailing to the court. Fed.R.App.P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). The record does not reveal when Peterson gave the notice of appeal to prison officials for mailing. 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, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). The record, as supplemented, will then be returned to this court for further consideration.
REMANDED.