                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-7053



VENTURA GARCIA,

                                              Plaintiff - Appellant,

          versus


JOHNNIE SHUFFORD,    ex-officer   at   McDowell
County Jail,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen, Chief
District Judge. (CA-02-275)


Submitted:   September 8, 2004         Decided:   September 28, 2004


Before WILKINSON, LUTTIG, and TRAXLER, Circuit Judges.


Remanded by unpublished per curiam opinion.


Ventura Garcia, Appellant Pro Se.       Johnnie Shufford, Appellee
Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

           Ventura Garcia seeks to appeal from the district court’s

order entering judgment in his favor in his action filed pursuant

to 42 U.S.C. § 1983 (2000).   The notice of appeal in this case was

received in the district court after expiration of the appeal

period.   However, Garcia dated his notice of appeal prior to the

expiration of the appeal period.   Under Houston v. Lack, 487 U.S.

266, 276 (1988), the notice is considered filed as of the date

Garcia delivered it to prison officials for forwarding to the

court.    Because the record does not reveal when Garcia delivered

his notice of appeal to prison authorities, we cannot determine

whether the notice of appeal is timely.

           The record is similarly unclear as to the date Garcia

filed his motion for reconsideration of the court’s order.   Under

Houston v. Lack, the motion to reconsider also is deemed filed as

of the date the petitioner delivered it to prison officials for

mailing to the court.   See United States v. Duke, 50 F.3d 571, 575

(8th Cir. 1995).     Although Garcia’s motion to reconsider was

received by the district court clerk more than one month after the

district court’s entry of judgment, the date on the motion is

within ten days following entry of the district court’s decision.

See Fed. R. Civ. P. 6(a) (computation of time).    The date Garcia

delivered the motion to reconsider to prison officials must be

ascertained by the district court because the timing of the filing


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of that motion determines whether it is properly considered under

Fed R. Civ. P. 59(e) or Fed. R. Civ. P. 60(b).   See In re Burnley,

988 F.2d 1 (4th Cir. 1992).   Accordingly, we remand the case for

the district court to determine the timeliness of the filing of the

notice of appeal under Houston v. Lack.     In the event that the

court concludes that Garcia’s notice of appeal was timely filed, it

must then determine whether Garcia’s motion to reconsider was

delivered to prison officials for mailing no later than the tenth

day following the entry of the court’s April 27, 2004 order.   The

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

further consideration.

                                                          REMANDED




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