UNPUBLISHED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Remanded by unpublished per curiam opinion.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, Assis-
tant Attorney General, Richmond, Virginia, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit.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 Opera-
tions 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.
_________________________________________________________________
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 ser-
vice was dated June 12.

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The district court issued an order applying the"presumption of regu-
larity" 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
_________________________________________________________________
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).

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