USCA4 Appeal: 23-6771      Doc: 15         Filed: 12/12/2023    Pg: 1 of 2




                                            UNPUBLISHED

                               UNITED STATES COURT OF APPEALS
                                   FOR THE FOURTH CIRCUIT


                                              No. 23-6771


        MICHAEL JOHNSON,

                            Plaintiff - Appellant,

                     v.

        MARIAN FOGAN; SCOTT MORAN,

                            Defendants - Appellees.



        Appeal from the United States District Court for the District of Maryland, at Baltimore.
        Stephanie A. Gallagher, District Judge. (1:21-cv-02570-SAG)


        Submitted: November 30, 2023                                Decided: December 12, 2023


        Before THACKER and QUATTLEBAUM, Circuit Judges, and MOTZ, Senior Circuit
        Judge.


        Remanded by unpublished per curiam opinion.


        Michael Johnson, Appellant Pro Se. Christopher A. Gozdor, OFFICE OF THE
        ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.


        Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 23-6771      Doc: 15          Filed: 12/12/2023     Pg: 2 of 2




        PER CURIAM:

                Michael Johnson seeks to appeal the district court’s order granting Defendants’

        motion to dismiss his 

 complaint for failure to state a claim. The district

        court received the notice of appeal shortly after expiration of the appeal period, though the

        notice was dated within the appeal period. Because Johnson is serving a criminal sentence

        while confined to a state institution, the notice of appeal is considered filed as of the date

        it was properly delivered to facility officials for mailing to the court. Fed. R. App. P.

        4(c)(1); Houston v. Lack, 

 (1988). However, “[i]f an institution has a

        system designed for legal mail, the inmate must use that system to receive the benefit of

        this rule.” Fed. R. App. P. 4(c)(1). The record does not conclusively establish whether the

        institution where Johnson is housed has such a system, whether he used that system, or

        when he delivered the notice of appeal to the institution’s officials for mailing.

        Accordingly, we remand this case for the limited purpose of allowing the district court to

        ascertain those facts and determine whether the notice of appeal was timely filed under

        Rule 4(c)(1) and Houston. The record, as supplemented, will then be returned to this court

        for further consideration. We defer ruling on Johnson’s motion for a new trial until that

        time.

                                                                                       REMANDED




                                                      2