Jacoby v. Thomas et al (INMATE 2)

Filing 74

ORDER: On January 11, 2019, the Eleventh Circuit remanded this action to the district court with the following instructions: "This appeal is REMANDED, sua sponte, to the district court for the limited purpose of determining as further set out in the order. 11th Circuit Remand Order (doc. no. 72 ). It is ORDERED that plaintiff Brent Jacoby is allowed until 3/27/2019, to submit to this court any evidence of the "exact date" he received notice of the court's 8/29/2018, 66 judgment, as further set out in order. If the court does not hear from plaintiff Jacoby within the time allowed, the court will assume that his appeal untimely. Signed by Honorable Judge Myron H. Thompson on 2/27/2019. Furnished to 11th Circuit Appeals Clerk. (kr, ) Modified on 2/27/2019 to include additional text for appeal purposes. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
BRENT JACOBY,

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Plaintiff,
v.
COMMISSIONER THOMAS,
et al.,
Defendants.

CIVIL ACTION NO.
2:15cv367-MHT
(WO)

ORDER
On January 11, 2019, the Eleventh Circuit remanded
this action to the district court with the following
instructions:
"This appeal is REMANDED, sua sponte, to the
district court for the limited purpose of
determining: (1) whether Appellant Brent Jacoby
filed a prior, timely notice of appeal, and (2)
if not, whether he merits reopening of the appeal
period under Federal Rule of Appellate Procedure
4(a)(6). Mr. Jacoby’s notice of appeal, dated
October 20, 2018, is untimely to appeal from the
district court’s August 29, 2018 order granting
summary judgment to the defendants on his 42
U.S.C. § 1983 complaint. 28 U.S.C. § 2107(a);
Fed. R. App. P. 4(a)(1)(A), (c)(1); Green v.
Drug Enf’t Admin., 606 F.3d 1296, 1300-01 (11th

Cir. 2010); see also Daniels v. United States,
809 F.3d 588, 589 (11th Cir. 2015).
"However, in his notice of appeal, Mr. Jacoby
indicates that his mail was not reaching the
district court and that his mail had been two or
three weeks late in getting to him.
He also
states that he filed a prior notice of appeal in
the case, though no such notice had been
docketed. Thus, there are factual questions as
to whether Mr. Jacoby filed a prior, timely
notice of appeal, and if he did not, whether
reopening of the appeal period under Fed. R.
App. P. 4(a)(6) is merited.
Fed. R. App. P.
4(a)(6); Sanders v. United States, 113 F.3d 184,
186 n.2, 187 (11th Cir. 1997).
"Upon making its determinations, the district
court shall return the case, as supplemented, to
this Court for further proceedings."
11th Circuit Remand Order (doc. no. 72).
The court first turns to whether plaintiff Jacoby
filed a prior, timely notice of appeal.

Upon careful

review of the record, it appears that on August 1, 2018,
he filed a document entitled “Motion for a Continuance
To File Objections and or a Notice of Appeal of the
Magistrate Judge Recommendations to dismiss my Claim in

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Whole” (doc. no. 63).1

The clerk of court docketed this

filing as a “motion for continuance to file objections”
but did not treat it as a containing a notice of appeal,
and this court did not recognize it as an appeal notice
at the time.

However, even if the court back then had

treated that document as containing a notice of appeal
(or even were to do so now), the notice would not benefit
Jacoby now.
magistrate
before

The notice was filed after entry of the
judge’s

entry

recommendation.

of

recommendation
the

final

Because

but

judgment
the

about

a

adopting

magistrate

month
the

judge’s

recommendation was not final and appealable, the notice
of appeal “was not valid to perfect the appeal as of the
date of the district court's judgment.”

Perez-Priego

1. Under the “mailbox rule,” the court deems the
notice of appeal filed on the date Jacoby delivered it
to the prison authorities for mailing. See United States
v. Hughes, 432 F. Supp. 2d 1250, 1251 n.1 (M.D. Ala.
2006) (Thompson, J.).
Because Jacoby affirmed in a
certificate of service that he mailed the document on
that date, the court treats the document as having been
filed on that date.
3

v. Alachua Cty. Clerk of Court, 148 F.3d 1272, 1273 (11th
Cir. 1998).

Therefore, the court concludes that, while

Jacoby did file an earlier notice of appeal, it was not
a timely appeal as to the judgment he now seeks to
overturn.
Turning

to

the

second

issue,

Federal

Rule

of

Appellate Procedure 4(a)(6) allows the district court to
“reopen the time to file an appeal for a period of 14
days after the date when its order to reopen is entered,”
but only if the court makes certain findings.

The court

must find: (A) that the moving party did not receive
notice under Federal Rule of Civil Procedure 77(d)2 of
the entry of the judgment within 21 days after entry; (B)
that the motion is filed within 180 days after the entry
of judgment or 14 days after the moving party receives

2. Rule 77(d) requires the clerk, immediately after
entering an order or judgment, to “serve notice of the
entry, as provided in Rule 5(b), on each party who is not
in default for failing to appear. The clerk must record
the service on the docket.”
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notice

under

Rule

77(d)

of

the

entry,

whichever

is

earlier; and (C) that no party would be prejudiced by
reopening the time to file an appeal.
P. 4(a)(6).

See Fed. R. App.

Even if all three conditions are met, “the

district court may, in its discretion, deny a motion to
reopen.”

Watkins v. Plantation Police Dep’t, 733 F.

App’x 991, 995 (11th Cir. 2018).
On October 20, 2018, Jacoby filed his “second notice
of appeal” (doc. no. 67) from the court’s August 29,
2018,

judgment

(doc.

no.

66).3

In

the

notice,

he

represents that his mail has been handled improperly and
repeatedly delivered two to three weeks late, preventing
him from receiving timely notice of the judgment.

See

3. Under the “mailbox rule,” the court deems the
notice of appeal filed on the date Jacoby delivered it
to the prison authorities for mailing. See United States
v. Hughes, 432 F. Supp. 2d 1250, 1251 n.1 (M.D. Ala.
2006) (Thompson, J.). The notice was sent with a cover
letter dated October 19, 2018, but he signed the notice
of appeal on October 20, 2018.
The court concludes that
October 20, 2018 was the day he delivered the letter for
mailing.
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Notice of Appeal (doc. no. 67).4

However, he does not

state the date upon which he received the court’s August
29 judgment.

The docket sheet shows that the judgment

was mailed to Jacoby at Bibb Correctional Facility on the
day it was entered.
Without knowing when Jacoby received the judgment,
the court cannot determine whether it may, under Rule
4(a)(6), reopen the time for an appeal.

In particular,

although it is clear that Jacoby’s second notice of
appeal came within 180 days of the entry of judgment, it
is not clear (1) whether Jacoby received notice of the
judgment within 21 days of entry, or (2) whether he filed
his second notice of appeal within 14 days of receiving
notice of the judgment.
to

determine

whether

That information is necessary

Jacoby

has

satisfied

the

time

periods in Rule 4(a)(6)(A) and (B).

4. He previously represented that his mail was
“always” delivered seven to 15 days late. See Motion for
Continuance and Notice of Appeal (doc. no. 63).
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***
Considering

the

foregoing,

it

is

ORDERED

that

plaintiff Brent Jacoby is allowed until March 27, 2019,
to submit to this court any evidence of the “exact date”
he

received

notice

of

judgment (doc. no. 66).

the

court’s

August

29,

2018,

If plaintiff Jacoby files a

statement as evidence, the statement should be sworn,
that is, under oath, or should be presented in the form
of a declaration under penalty of perjury pursuant to 28
U.S.C. § 1746.

If the court does not hear from plaintiff

Jacoby within the time allowed, the court will assume
that his appeal was untimely.
DONE, this the 27th day of February, 2019.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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