UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL EUGENE BROWN,

Plaintiff-Appellant,

v.

H. R. POWELL, Warden; PATRICIA

No. 97-6931

CROCKER, Assistant Post Master; B.

HINES, Sergeant, Security; S.

SIMMONS, Accounting Office,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

John A. MacKenzie, Senior District Judge.

(CA-95-414-2)

Submitted: February 22, 2000

Decided: March 15, 2000

Before LUTTIG and MICHAEL, Circuit Judges,

and HAMILTON, Senior Circuit Judge.

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Remanded by unpublished per curiam opinion.

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COUNSEL

Michael Eugene Brown, Appellant Pro Se. William W. Muse, Assistant Attorney General, Richmond, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Michael Eugene Brown appeals from the dismissal of his 42

U.S.C.A. § 1983 (West Supp. 1999) action. Because Brown's notice

of appeal was received in the district court after expiration of the

appeal period, we remanded the case to the district court and

instructed the district court to obtain information regarding the date

that Brown delivered his notice of appeal to prison officials and to

determine the timeliness of the filing under Houston v. Lack, 487 U.S.

266 (1988) (notice considered filed as of the date Appellant delivers

it to prison officials forwarding to the court).

On remand, the district court ordered the Defendants to indicate

when Brown delivered his notice of appeal to prison authorities.

Defendants filed a response and attached an affidavit from the Operations Officer at Dillwyn Correctional Center. The affidavit stated that

outgoing mail is picked up every weekday morning from a mailbox

to which prisoners have access and delivered on the same day to the

United States Post Office. Mail marked "legal mail" is logged and

documented, but regular mail is not. Finally, the affidavit stated that

Dillwyn's logbook showed that Brown had not mailed legal mail to

the United States Fourth Circuit Court of Appeals 1 or the Attorney

General in either May, June, or July of 1997.2

The district court neither requested any information from Brown

nor informed him that he could respond to Defendants' filing. Brown

did not file any documents or pleadings in district court on remand.

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1 However, Brown filed his notice of appeal in the district court.

2 The order being appealed from was entered May 15, 1997. Therefore,

Brown's notice of appeal was due by June 16. Brown filed a notice of

appeal on July 7. The notice was dated May 12, and the certificate of service was dated June 12.

 2
The district court issued an order applying the"presumption of regularity" to prison officials and the post office and found that Brown's

appeal was not timely filed.3 The case was then returned to this court.

Our review of the record and case file discloses that, when Brown

filed his action, he resided at Deerfield Correctional Center. Around

December 10, 1996, he was transferred to Greensville Correctional

Center. It was not until on or around May 8, 1998, that Brown was

transferred to Dillwyn Correctional Center. (See Change of Address

Notification). Therefore, at the relevant time in 1997 when his notice

of appeal was filed, Brown was not at Dillwyn. Thus, the Operations

Officer's affidavit is irrelevant, and the district court erred in relying

upon it. As there is no further evidence in the record regarding the

date Brown gave his notice of appeal to prison officials, we are

unable to resolve the issue on this record.

Therefore, we remand the case with instructions to determine the

date Brown delivered his notice of appeal to Greensville officials. We

also note that Brown should be notified of his right to respond to any

evidence produced by Defendants. The record, as supplemented, will

then be returned to this court for further consideration.

REMANDED

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3 The district court stated that Brown "did not deliver his notice of

appeal to prison authorities on or before June 13, 1997." However,

Brown's notice was not due until June 16. The district court apparently

erred by counting from the date of issuance of the final order (May 14,

1997) rather than the date of entry of that order (May 15, 1997). See Fed.

R. App. P. 4(a)(1)(A).

 3