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UNPUBLISHED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Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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