Opinion
No. 20-6419
07-28-2020
KEREEM RANDOLPH, Plaintiff - Appellant, v. BETSY JIVIDEN; J.T. BINION; JESSICA THORNHILL; PRIMECARE MEDICAL, Defendants - Appellees.
Kereem Randolph, Appellant Pro Se. William E. Murray, ANSPACH MEEKS ELLENBERGER PLLC, Charleston, West Virginia; Anne Liles O'Hare, OFFUTT NORD, PLLC, Huntington, West Virginia, for Appellees.
UNPUBLISHED
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, Chief District Judge. (2:18-cv-01357) Before WILKINSON, MOTZ, and RICHARDSON, Circuit Judges. Remanded by unpublished per curiam opinion. Kereem Randolph, Appellant Pro Se. William E. Murray, ANSPACH MEEKS ELLENBERGER PLLC, Charleston, West Virginia; Anne Liles O'Hare, OFFUTT NORD, PLLC, Huntington, West Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Kereem Randolph seeks to appeal the district court's order adopting the magistrate judge's recommendation and dismissing his 42 U.S.C. § 1983 (2018) complaint. The district court entered its dismissal order on January 3, 2020. Randolph filed his notice of appeal, at the latest, on March 23, 2020. Appellees have moved to dismiss this appeal as untimely. Randolph, however, claimed that he never received a copy of the district court's order, and there is some evidence in the record supporting this assertion.
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 order 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 Randolph claimed that he did not receive a copy of the court's order, and he filed the notice of appeal within 180 days after entry of the order, we construe Randolph's 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 record, as supplemented, will be returned to this court for further consideration.
REMANDED