Opinion
22-6234
05-27-2022
CURTIS EUGENE SPARKS, JR., Plaintiff - Appellant, v. BOBBY RUSSELL, Western Virginia Regional Jail, Defendant-Appellee.
Curtis Eugene Sparks, Jr., Appellant Pro Se. Christopher Stanislaw Dadak, GUYNN WADDELL CARROLL & LOCKABY, P.C., for Appellee.
UNPUBLISHED
Submitted: May 24, 2022
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Michael F. Urbanski, Chief District Judge. (7:21-cv-00037-MFU-PMS)
Curtis Eugene Sparks, Jr., Appellant Pro Se.
Christopher Stanislaw Dadak, GUYNN WADDELL CARROLL & LOCKABY, P.C., for Appellee.
Before NIEMEYER, KING, and RICHARDSON, Circuit Judges.
Remanded by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM.
Curtis Eugene Sparks, Jr., seeks to appeal the district court's order dismissing his 42 U.S.C. § 1983 complaint. The district court entered its judgment on January 7, 2022. Sparks filed his notice of appeal on February 25, 2022. See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing prison mailbox rule); Fed. R. App. P. 4(c)(1)(A)(ii). Sparks' notice of appeal is clearly untimely. See Fed. R. App. P. 4(a)(1)(A). In his notice of appeal, however, Sparks claimed that he had not received the dismissal order and had discovered the dismissal of his case through independent means.
Pursuant to Fed. R. App. P. 4(a)(6), the district court may reopen the time to file an appeal for a 14-day period if: (1) the movant did not receive proper notice of the entry of the judgment within 21 days after entry; (2) the motion to reopen the appeal period is filed within 180 days after the judgment is entered or within 14 days after the movant receives proper notice of the entry, whichever is earlier; and (3) no party would be prejudiced. Fed. R. App. P. 4(a)(6); see Fed. R. Civ. P. 77(d). Because Sparks claimed that he had not received a copy of the district court's order by the time he filed his late notice of appeal, we liberally construe the notice of appeal as a motion to reopen the appeal period under Rule 4(a)(6). We remand to the district court to determine whether the appeal period should be reopened. The district court may consider this motion to reopen the appeal period in conjunction with the motion for an extension of time pending in the district court. Furthermore, we direct the district court to send Sparks a copy of the dismissal order if the court finds that he has not yet received a copy. The record, as supplemented, will be returned to this court for further consideration.
REMANDED.