                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-6144



ANTONIO RENALDO JACKSON-BEY,

                                              Plaintiff - Appellant,

          versus


CORRECTIONAL MEDICAL SERVICES,

                                              Defendant - Appellee.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-
03-1790-8-PJM)


Submitted:   May 26, 2004                  Decided:   July 19, 2004


Before NIEMEYER, LUTTIG, and KING, Circuit Judges.


Remanded by unpublished per curiam opinion.


Antonio Renaldo Jackson-Bey, Appellant Pro Se.      Philip Melton
Andrews, KRAMON & GRAHAM, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Antonio Renaldo Jackson-Bey, a Maryland prisoner, appeals

the district court’s order denying his 42 U.S.C. § 1983 (2000)

complaint.    We remand this case to the district court for further

fact finding.

          Federal Rule of Appellate Procedure 3 conditions federal

appellate jurisdiction on the filing of a timely notice of appeal.

Fed. R. App. P. 4(a) states that a party in a civil action must

file an appeal within thirty days of the entry of judgment.   It is

well-settled that compliance with Rule 4(a) is mandatory and

jurisdictional. Browder v. Director, Dep't of Corr., 434 U.S. 257,

267 (1978).     Rule 4(a)(4) states that when a party has filed a

motion under Federal Rule of Civil Procedure 60 within ten days of

the entry of the judgment, the thirty-day period does not begin to

run until the entry of the judgment disposing of the Rule 60

motion.   Rule 4(a)(5) allows a party to move for an extension of

time to file a notice of appeal where the party so moves no later

than thirty days after the time prescribed by Rule 4(a) expires and

where the party shows excusable neglect or good cause.

          The record in this case does not clearly reflect when

Jackson-Bey filed his Rule 60 motion.    While he dated the motion

October 13, 2003, the district court did not file the motion until

October 30, 2003.    Hence, we cannot glean from the record whether

Jackson-Bey’s motion for reconsideration is properly construed as


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a motion filed under Fed. R. Civ. P. 59, which would toll the

period for appealing the underlying judgment, or as a motion under

Rule 60, which would not toll the appeal period.          See In re

Burnley, 988 F.2d 1, 2-3 (4th Cir. 1992).

          Nor can we discern whether Jackson-Bey timely appealed

from the court’s order denying reconsideration.         The district

court’s judgment denying Jackson-Bey’s motion for reconsideration

was entered November 20, 2003.          The thirty-day appeal period

expired December 22, 2003.    See Fed. R. App. P. 26 (instructing

that the last day of the period is not counted when it is a

Saturday).    Jackson-Bey’s notice of appeal was dated December 17,

2003, but was not entered until January 13, 2004, within thirty

days after the expiration of the thirty day period.      Pursuant to

Houston v. Lack, 487 U.S. 266 (1988), Jackson-Bey’s pleadings were

filed when placed in the prison’s internal mail system.    Depending

on when this occurred, Jackson-Bey may have filed a Rule 59 or 60

motion, and may or may not have timely appealed from the orders

denying relief and denying reconsideration. Moreover, we note that

the district court construed Jackson-Bey’s notice of appeal as a

motion for extension of time, but did not ultimately resolve that

motion.

             In light of the foregoing uncertainty regarding the

timeliness of Jackson-Bey’s motion for reconsideration and appeal

from the denial of that motion, we remand the case to the district


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court for appropriate fact finding.     In so doing, we emphasize

that, in order to establish the timeliness of his notice of appeal,

the appellant must comply with Fed. R. App. P. 4(c)(1).*         We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                          REMANDED




     *
       Fed. R. App. P. 4(c)(1) provides, as follows:
     If an inmate confined in an institution files a notice of
     appeal in either a civil or a criminal case, the notice
     is timely if it is deposited in the institution’s
     internal mail system on or before the last day for
     filing.   If an institution has a system designed for
     legal mail, the inmate must use that system to receive
     the benefit of this rule. Timely filing may be shown by
     a declaration in compliance with 28 U.S.C. § 1746 or by
     a notarized statement, either of which must set forth the
     date of deposit and state that first-class postage has
     been paid.
(emphasis added).

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