USCA4 Appeal: 22-6657 Doc: 10 Filed: 12/14/2022 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6657

ELBERT SMITH,

Plaintiff - Appellant,

v.

SERGEANT MICHAEL PAULEY; CORRECTIONAL OFFICER S. SMITH, Property Officer; CORRECTIONAL OFFICER CUYKINDALL, Property Officer; WARDEN KARL MANIS; MARCUS ELAM, Regional Administrator for the Western Region Office,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Thomas T. Cullen, District Judge. (7:21-cv-00457-TTC-RSB)

Submitted: November 29, 2022 Decided: December 14, 2022

Before WILKINSON, KING, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Elbert Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6657 Doc: 10 Filed: 12/14/2022 Pg: 2 of 3

PER CURIAM:

Elbert Smith, a Virginia inmate, appeals the district court’s order dismissing

Smith’s

civil rights action without prejudice for failure to prosecute.

Although we express no opinion regarding the merits of Smith’s suit, we vacate the

dismissal and remand for further proceedings.

Upon receipt of Defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss, the district

court issued a notice advising Smith of his obligation to respond to the pending dispositive

motion. The district court afforded Smith 21 days from the date of that notice to file a

responsive pleading. Under Fed. R. Civ. P. 6(d), when a party must act within a specified

time after being served, and service is made by mail, the party has an additional three days

to act. If the deadline falls on a weekend or holiday, the period extends until the next

business day. Fed. R. Civ. P. 6(a)(1)(C). In the case of an unrepresented prisoner, a

submission is considered filed on the day the prisoner tenders it to prison officials for

mailing to the court. Houston v. Lack,

(1988).

Here, the district court issued the subject notice on April 7, 2022. Because Smith

received the notice by mail, he had 24 days to file a response to the pending dispositive

motion. That deadline fell on Sunday, May 1, 2022, extending the response period to the

next business day—Monday, May 2, 2022. According to the included certificate of service,

Smith tendered his response to prison officials for mailing on May 1, 2022. On

May 5, 2022, before receiving the response, the district court entered the order dismissing

Smith’s action without prejudice for failure to prosecute, citing Smith’s failure to respond

to Defendants’ motion to dismiss.

2 USCA4 Appeal: 22-6657 Doc: 10 Filed: 12/14/2022 Pg: 3 of 3

Because the district court dismissed Smith’s action before receiving his response,

which was timely filed under Houston, the district court was obligated to consider it.

Accordingly, we vacate the district court’s judgment and remand this case for consideration

of that response. We dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before this court and argument would not aid the

decisional process.

VACATED AND REMANDED

3