UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7517

HASSAN SHABAZZ, a/k/a R. Sydnor,

Plaintiff - Appellant,

and

ROBERT PARKER; C. FERGUSON; RICKY INGRAM; E. HOLMES; G. SMALL; G. FLAMER; D. MCCLAIN; DWAYNE REID; A. EBRON; A. WADDLER; M. SANDRIDGE; C. HILLIARD; C. WILLIAMS; J. CRUMITY; J. ORTEGA; S. RALPH; J. RONALD JACKSON; ELTON LEE WILLIAMS; DAVID X. YOUNG; JEROME A. WOOLFORK; KEVIN POTTS; MARK ELLIOTT; PAUL W. MOREHEAD; BERNARD CRAWFORD,

Plaintiffs,

versus

VIRGINIA DEPARTMENT OF CORRECTIONS; GEORGE ALLEN, III; JIM GILMORE, Former Governor of Virginia; RON ANGELONE, Director, Virginia Department of Corrections; GENE M. JOHNSON, Deputy Director of Virginia Department of Corrections; R. A. YOUNG, Regional Director, Virginia Department of Corrections; S. K. YOUNG, Warden, Wallens Ridge State Prison; MR. HARVEY, Assistant Warden of Operations, Wallens Ridge State Prison; MAJOR YATES, Chief of Security at Wallens Ridge State Prison; C/O LANE, Corporal, Gun Post and Floor Officer; C/O ROBINSON, Corporal, Gun Post and Floor Officer; C/O MEADE, Corporal, Gun Post and Floor Officer; JOHN DOE, Corporal, Gun Post and Floor Officer; C/O FLANARY, Corporal, Gun Post and Floor Officer; WALLENS RIDGE MEDICAL DEPARTMENT; WALLENS RIDGE STATE PRISON, Psychiatric Department, Defendants - Appellees.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (CA-02-499-7)

Submitted: February 11, 2005 Decided: March 1, 2005

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Hassan Shabazz, Appellant Pro Se. Mark Ralph Davis, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

- 2 - PER CURIAM:

Hassan Shabazz, a state prisoner, appeals the district

court’s order dismissing his

(2000) action without

prejudice for failure to prosecute.

On March 13, 2002, Shabazz filed his § 1983 complaint in

the district court alleging that officers at Wallens Ridge State

Prison participated in unnecessary and inappropriate use of

firepower inside the prison. On June 16, 2004, the Defendants

filed a motion for summary judgment. Shabazz was given notice

pursuant to Roseboro v. Garrison,

(4th Cir. 1975), and

allowed twenty days to file a response. The Roseboro notice was

dated June 17, 2004; therefore, Shabazz had until July 7, 2004, to

file a response. See Fed. R. Civ. P. 6(a).

On July 6, 2004, the Defendants filed a motion to

dismiss. The district court provided Shabazz with Roseboro notice

that same day and gave him twenty days to respond to the motion to

dismiss.

The record reflects that Shabazz filed a response to both

the Defendants’ summary judgment motion and motion to dismiss.

Shabazz dated his certificate of service attached to his response

to the motion for summary judgment on July 5, 2004, which was a

federal holiday. The district court stamped Shabazz’s response as

filed on July 9, 2004. By order dated July 13, 2004, the district

court dismissed Shabazz’s § 1983 action without prejudice for

- 3 - failure to respond to the Defendants’ motion for summary judgment

within the allotted time period.

On appeal, Shabazz claims his response is timely under

Houston v. Lack,

(1988). Under Houston v. Lack,

Shabazz’s response is deemed filed as of the time he handed it to

prison officials for mailing.

There is no evidence in the

record of when Shabazz relayed his response to prison officials for

mailing other than Shabazz’s own certificate of service dated July

5, 2004. However, because Shabazz prepared his response on July 5,

2004, and the response was received in the district court for

filing no later than July 9, 2004, it appears that Shabazz must

have relayed his response to prison officials for mailing no later

than the July 7, 2004 deadline. Accordingly, we vacate the

district court's order and remand to the district court to consider

Shabazz’s response to the Defendant’s summary judgment motion and

motion to dismiss. We express no opinion as to the district

court’s ultimate disposition of Shabazz’s claims. We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

VACATED AND REMANDED

- 4 -