USCA4 Appeal: 23-7049      Doc: 23         Filed: 09/05/2024    Pg: 1 of 3




                                            UNPUBLISHED

                               UNITED STATES COURT OF APPEALS
                                   FOR THE FOURTH CIRCUIT


                                              No. 23-7049


        CLARENCE W. ALSTON,

                            Plaintiff - Appellant,

                     v.

        OFFICER J. SMITH, Correctional Officer,

                            Defendant - Appellee.



        Appeal from the United States District Court for the Eastern District of Virginia, at
        Alexandria. Claude M. Hilton, Senior District Judge. (1:21-cv-01112-CMH-WEF)


        Submitted: May 30, 2024                                      Decided: September 5, 2024


        Before GREGORY, RICHARDSON, and BENJAMIN, Circuit Judges.


        Remanded by unpublished per curiam opinion. Judge Richardson wrote a dissenting
        opinion.


        Clarence Wendell Alston, Appellant Pro Se. Gregory S. Bean, GORDON REES SCULLY
        MANSUKHANI, LLP, Williamsburg, Virginia, for Appellee.


        Unpublished opinions are not binding precedent in this circuit.
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        PER CURIAM:

               Clarence W. Alston seeks to appeal the district court’s order granting summary

        judgment to the Defendant and dismissing his 

 complaint. In civil cases,

        parties have 30 days after the entry of the district court’s final judgment or order to note an

        appeal, Fed. R. App. P. 4(a)(1)(A), unless the district court extends the appeal period under

        Fed. R. App. P. 4(a)(5) or reopens the appeal period under Fed. R. App. P. 4(a)(6). “[T]he

        timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles

        v. Russell, 

 (2007).

               The district court entered judgment on August 31, 2023. Alston filed the notice of

        appeal on October 11, 2023. Because Alston is incarcerated, the notice is considered filed

        as of the date it was properly delivered to prison officials for mailing to the court. Fed. R.

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

 (1988). However, the record does not

        clearly establish when Alston gave the notice of appeal to prison officials for mailing.

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

        ascertain from prison mail logs the date on which Alston gave his notice of appeal to prison

        officials for mailing. The record, as supplemented, will then be returned to this court for

        further consideration.

                                                                                        REMANDED




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        RICHARDSON, Circuit Judge, dissenting:

               Under Federal Rule of Appellate Procedure 4(c), an appeal by an inmate confined

        in an institution is timely if the inmate “files [the] notice of appeal . . . in the institution’s

        internal mail system” before the filing deadline and provides either “a declaration . . .

        setting out the date of deposit” or “evidence (such as a postmark or date stamp) showing

        that the notice was so deposited.” Fed. R. App. P. 4(c)(1)–(1)(B). Here, Clarence Alston

        provided neither a declaration “setting out the date of deposit” nor other “evidence”

        proving that he timely submitted his notice. Instead, all he provided was the date on the

        notice itself—which is evidence only of when his notice was written, not when it was

        submitted to the prison mail system—and an out-of-time date stamp. Since Alston has thus

        failed to comply with the terms of Rule 4(c)(1), we lack jurisdiction, and I would

        accordingly dismiss the appeal.




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