                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-6080


ALLAN A. PETERSON,

                  Plaintiff - Appellant,

             v.

BRIAN PRICE; MICHELLE SPEARS;         DOMINIC    GUTIERREZ;   SUSAN
MCCLINTOCK; MAVIS HOLYFIELD,

                  Defendants - Appellees.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:06-cv-00106-FPS-JSK)


Submitted:    April 16, 2009                    Decided:   May 15, 2009


Before TRAXLER and DUNCAN, Circuit Judges, and        HAMILTON, Senior
Circuit Judge.


Remanded by unpublished per curiam opinion.


Allan A. Peterson, Appellant Pro Se.        Betsy C. Jividen,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.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

             Allan A. Peterson seeks to appeal the district court’s

order adopting the magistrate judge’s report and recommendation

and dismissing his complaint.          The notice of appeal was received

in the district court shortly after expiration of the appeal

period.       Because    Peterson     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, 487 U.S. 266 (1988).              The record does

not reveal when Peterson gave the notice of appeal to prison

officials for mailing.         We previously remanded this case to the

district court for the limited purpose of allowing the district

court   to    obtain    this   information    from   the   parties   and   to

determine whether the filing was timely.

             When the parties did not respond with the requested

information by the deadline established by the district court,

the court found that Peterson had failed to satisfy his burden

of proof as to the issue of timeliness.              Peterson subsequently

filed a notice to this court and the district court that he did

not receive the district court’s order directing him to file a

pleading addressing the timeliness of his appeal, and providing

the requested information.          The district court has not addressed

Peterson’s notice.        Accordingly, we again remand the case for

the limited purpose of allowing the district court to consider

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Peterson’s notice and determine whether the notice of appeal was

timely under Fed. R. App. P. 4(c)(1) and Houston v. Lack.    The

record, as supplemented, will then be returned to this court for

further consideration. *

                                                        REMANDED




     *
       By this disposition, we indicate no view as to whether
Peterson’s   notice  of   appeal  was  timely,   leaving  that
determination to be made in the first instance by the district
court.



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