                           UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                           No. 09-7384


STEVEN WAYNE GOODMAN,

               Plaintiff – Appellant,

          v.

D. B. EVERETT, Warden, SIISP; D. ROBINSON, Regional
Director, Eastern District of the DOC; GENE JOHNSON,
Director of the DOC; K. BASSETT, Warden, Keen Mountain
Correctional Center; PIXLEY, Assistant Warden, SIISP; MR.
PHELPS,    Correctional    Officer,    KMCC;   R.    SANDIFER,
Institutional Ombudsman, KMCC; JOHN/JANE DOE, Regional
Ombudsman, Western Region of the DOC; K. PICKEREL,
Assistant Warden, KMCC; L. HUFFMAN, Regional Director,
Western Region of the DOC; G. ROBINSON, Manager, Ombudsman
Services United for the DOC; JOHN JABE, Deputy Director of
the DOC; HAYES, Institutional Investigator, SIISP; C.
HARRIS,    Housing    Unit     Manager    and    Institutional
Classification Authority-Special Housing Unit; J. HARRIS,
Treatment Programs Supervisor; OFFICER GILMORE, Chief
Security, SIISP; JOHN/JANE DOE, #2, Central Classification
Services for the DOC; G. BASS, Manager, Offender Management
Services; OFFICER BARBOUR, Office Service Specialist,
SIISP; MASSENBURG, Institutional Ombudsman, SIISP; W.
ROLLINS, Operations Officer, SIISP; G. SIVELS, Regional
Ombudsman Eastern Region of the DOC; NICHOLS, Psychologist,
SIISP; RIVERS, Psychologist, SIISP; GENERAL, Psychiatrist,
SIISP; L. STANDFORD, Employee of Prison Health Services and
Health Service Administrator at SIISP; S. TAYLOR, Employee
of Prison Health Services and Director of Nursing at SIISP;
K. WATSON, Director of Audits and Regulation Compliance for
Prison   Health   Services;   C.   COUTHER,   Regional   Nurse
Administrator, Eastern Region of the DOC,

               Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:06-cv-00849-RLW)


Submitted:   June 24, 2010                Decided:   July 16, 2010


Before KING, DUNCAN, and AGEE, Circuit Judges.


Remanded by unpublished per curiam opinion.


Steven Wayne Goodman, Appellant Pro Se. Mark R. Davis, Assistant
Attorney General, Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

                Steven Wayne Goodman seeks to appeal various orders of

the district court entered in his 42 U.S.C. § 1983 (2006) suit.

The district court entered its final order on May 1, 2009.                                     On

May    21,      Goodman   filed       a    Fed.       R.    Civ.   P.   59(e) *    motion     for

reconsideration dated May 14.                         The certificate of service was

neither notarized nor sworn to under penalty of perjury, and it

stated that the motion was mailed “first class mail, postage

prepaid.”         The district court denied the Rule 59(e) motion on

June 18.         On July 16, Goodman filed a notice of appeal, dated

July 15, and seeking to appeal inter alia the denial of his

motion for reconsideration and the district court’s May 1 order.

                Under Fed. R. App. P. 4(a)(4)(A)(iv), a timely motion

to alter or amend the judgment under Fed. R. Civ. P. 59(e) tolls

the    time      for    filing    a       notice       of    appeal     of   the    underlying

judgment.         In order to be timely, a motion to alter or amend

must       be   filed   within    ten       days       of    the   entry     of    judgment    in

question,        and    the   district       court          is   without     jurisdiction      to


       *
       The citations in this opinion to the Federal Rules of
Appellate Procedure and the Federal Rules of Civil Procedure are
to the Rules in effect at the time the relevant documents were
filed in district court.      The Rules were amended effective
December 1, 2009, to provide different appeal periods and
different methods of calculating dates. These amendments do not
affect the timeliness of Goodman’s appeal because the appeal
period expired before the effective date of the amendments.



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extend this time period.                     Fed. R. Civ. P. 6(b)(2), 59(e).                        In

this case, due to intervening weekends that are excluded from

time computation under Fed. R. Civ. P. 6(a), Goodman had until

May    15,    2009,    to     file       a    timely          Rule    59(e)      motion.        While

Goodman’s         motion    was     dated      May       14,     it    was       not    filed    until

May 21.

              Federal       Rule     of      Appellate          Procedure         4(c)(1)       states

that an incarcerated inmate’s notice of appeal is deemed filed

when deposited into the institution’s mail system.                                     However, the

Rule    further       notes       that       “[i]f      an     institution          has    a    system

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

receive the benefit of this rule.”                               For institutions without

legal    mail      systems,        an    inmate         may     submit       a    declaration       or

notarized         statement       consistent            with    Rule     4(c).          See     United

States v. Ceballos-Martinez, 387 F.3d 1140, 1144-45 (10th Cir.

2004); see also Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir.

2001)     (holding         that,    even       in       institutions          with      legal     mail

systems, declaration or notarized statement is still required).

              Although        the       district          court       apparently          considered

Goodman’s Rule 59(e) motion timely, we find that the record is

insufficient to determine when Goodman delivered his Rule 59(e)

motion       to     prison        officials             for     filing        and       whether     he

appropriately          followed           proper          channels       for           legal     mail.

Resolution of these questions is determinative of the issues

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properly before this court on appeal.          If the Rule 59(e) motion

was not timely filed, the time to appeal the underlying judgment

was not tolled, thus rendering untimely Goodman’s appeal of all

orders prior to June 14, 2009.

           Accordingly, we remand to the district court for a

determination of whether Goodman’s Fed. R. Civ. P. 59(e) motion

was timely filed.       The record, as supplemented, will then be

returned   to   this   court   for   further   consideration.   We   deny

Goodman’s motion to recuse.

                                                                REMANDED




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